Gordon et al v. New England Central Railroad, Inc.

Filing 37

OPINION AND ORDER Denying 2 Plaintiffs' Motion for a Preliminary Injunction. Signed by Chief Judge Christina Reiss on 12/8/2017. (pac)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

-8 p; ft 3h

sHffic

gIgEfi

CHARLES GORDON, ALICIA GORDON,
D.J. ENTERPRISES LLC,
A.C. LAWN MOWING,
DENIELLE GORDON, individually and
doing business as DEN & COMPANY

"!1,i
.

Plaintiffs,
Case No. 2:17-cv-00154

v.

NEW ENGLAND CENTRAL
RAILROAD,INC.,
Defendant.

OPINION AND ORDER DENYING PLAINTIFFS: MOTION FOR
A PRELIMINARY INJI]NCTION
(Doc.2)
Plaintiffs, Charles, Alicia, and Denielle Gordon (the "Gordons"), D.J. Enterprises
LLC, and A.C. Lawn Mowing, (collectively, '?laintiffs") bring this action against
Defendant New England Central Railroad, Inc. ("NECR"), alleging that NECR was
negligent in its repair of a raised railroad right of way embankment (the'oembankment")
adjacent to the Gordons' land locateA'at OS Old River Road in Hartford, Vermont (the

"property") after

a

July 1,2017 landslide. Plaintiffs further allege that NECR is engaged

in ongoing trespass on the property as a result of this repair.
Pending before the court is Plaintiffs' motion for a preliminary injunction (Doc. 2)
seeking an order enjoining NECR from trespassing on the Gordons' property and

requiring it to remove materials allegedly deposited on the property after the landslide.
Although Plaintiffs initially requested an order that required NECR to repair the

ir|

embankment in a manner that will prevent further trespass onto the property, they have

withdrawn that request.
On September 22,2017, the court held an evidentiary hearing on the pending
motion at which NECR asserted that Plaintiffs' state law claims are preempted by the
federal Interstate Commerce Commission Termination Act (the "ICCTA"),
49 U.S.C. $$ 10101-11908, and the Federal Railway Safety Act (the "FRSA"),
49 U.S.C. $$ 20101-21311.

At the conclusion of the hearing, the court granted Plaintiffs'

request to provide supplemental briefing on the preemption issues which the parties

completed on November 1, 2017. Plaintiffs are represented by R. Bradley Fawley, Esq.
and Timothy C.Doherty, Jr., Esq. NECR is represented by Michael B. Flynn, Esq. and

Matthew M. Cianflone, Esq.

I.

Findings of Fact.
For the putposes of the pending motion, based upon the admissible evidence, the

court makes the following findings of fact by a preponderance of the evidence:

A.

The Parties and the Property.

1.

The owners of the property, Plaintiffs Charles and Alicia Gordon, are married and
the parents of Plaintiff Denielle Gordon, an adult woman who owns a beauty
salon. The Gordons do not live at the property.

2.

A.C. Lawn Mowing and D.J. Enterprises LLC are businesses operated by the
Gordons, with headquarters at 136 Beech Street in White River Junction,
Vermont.

3.

NECR is a Delaware corporation with a principal office in Rochester, New York.
It owns a peflnanent easement and right of way on the embankment,
approximately thirty feet above the property. NECR operates freight trains along
its railroad tracks on the right of way and provides access to its tracks to Amtrak
for its twice-daily rail passenger service in Vermont.

4.

The property is located immediately adjacent to NECR's right of way at mile
marker 16.25 on the Roxbury subdivision. It consists of approximately .74 acres
bounded to the south by NECR's right of way on the embankment and to the north
by Old River Road in Hartford, Vermont.

5.

The Gordons' deed to the property does not contain a metes and bounds
description.

6.

The property includes three buildings which formerly served several purposes:
Charles Gordon stored tools, machinery, and equipment for his commercial
sweeping and bark mulch topsoil businesses in the garage; Denielle Gordon
operated her beauty salon in a second floor area; several garuge bays were rented
to contractors for equipment storage; one portion of the property was rented to a
"therapeutic program for disabled children," (Tr. at 115); another portion was
rented to a distributor that sells coffee,tea, honey, and maple syrup; and the
Gordons rented an apartment on the second floor to a non-family member tenant.

7.

In

8.

Joseph Nalette is a licensed land surveyor who assisted Mr. Hathom with the field
work for the '91 Survey prior to obtaining his surveyor's license. Mr. Nalette is
qualified as an expert witness in the field of land surveying. The court found Mr.
Nalette's testimony credible and persuasive.

9.

Mr. Nalette determined the property's boundaries by comparing the railroad's
1917 valuation map with the physical location of the rail line, and measuring the
distance from the center of the rail line and the center of a highway to establish a
corner of the Gordons' property. He then measured distances from "stationing"
points along the rail line to determine the length of the boundary betrueen the right
of way and the properfy. He was unable to locate metal pins demarcating the
Gordons' property line placed as part of the '91 Survey.

10.

Mr. Nalette explained that he discounted the boundaries indicated on a plan
prepared by Robert Farnsworth (the "Farnsworth Plan") sometime after the '91
Survey was completed. In particular, Mr. Nalette noted that the Farnsworth Plan's
drawing of the property line diverged from the railroad's own l9l7 valuation map.

11.

NECR did not introduce its own survey. It proffered no plausible challenge to the
accuracy of the '91 Survey.

1991, the properfy's boundaries were surveyed by Roy G. Hathorn, a licensed
surveyor, for the benefit of the property's prior owners (the "'91 Survey"). On
October 3,1991, C.D. Holmrarth prepared a corresponding map reflecting the '91
Survey.

B.
12.

The July 2017 Historic Rain Event.

On July t,2017, White River Junction, Vermont experienced a"250-year
[rainfall] event by meteorological standards." (Tr. at27.) As a result of this
historic rain event, NECR's tracks on the embankment were 'kashed out in two
significant locations in the area of [mile marker] 16.251.)" (Tr. at 161.) The
washout caused the tracks to be suspended in the air with no support beneath
them. Because this damage rendered NECR's tracks non-compliant with federal
railroad safety regulations, NECR was forced to suspend operations on its right of
way until repairs could be made. As a result of NECR's suspension of operations,
Amtrak passenger trains that typically use NECR's right of way were cancelled for

period of "[a]pproximately four to five days." (Tr. at 165.) NECR paid Amtrak
compensation during the days the rail line was out of service.
a

13.

The washout of the embankment generated a landslide of dirt, rocks, and foliage
which caused significant damage to buildings located on the property, including:
caving in a building's back wall; pushing a vehicle parked in a garuge bay through
the bay door; filling several garage bays with mud, silt, and water; and destroying
the interior shelving and furniture in Denielle Gordon's beauty salon. The
Gordons "cleaned 25 loads of debris out of' the garage bays after the event. (Tr.

t2t.)
14.

Because of the landslide, the apartment the Gordons were renting is no longer
habitable and their tenant has relocated.

15.

Also because of the landslide, Mr. Gordon cannot use the garage bays in which he
previously stored tools and equipment because the power, propane, and water
were turned off as a result of damage to the building. His businesses are still
operating, "[b]ut not at a hundred percent." (Tr. at 135.)

t6.

Of the eight tenants using space in buildings on the property prior to the JuJy 2017
rain event, three remain. Several tenants have been unable to recover items that
are "still buried in the mud[.]" (Tr. at 140.)

C.

The Repair of the Embankment and the Implications of Removing the
Rip-Rap Rock

t7.

To repair the damage to the right of way, NECR contracted with two engineering
firms that recommended that NECR use "rock material for better drainage and
suitable subgrade to support the structure of the track." (Tr. at 173.) A long-reach
excavator removed loam and the sandy subgrade on the embankment, and rip-rap
rock was installed in its place

18.

To determine the boundary of its property during repair of the embankment,
NECR did not obtain a survey or consult with a licensed surveyor. Instead, it
consulted its own valuation maps to determine the property line using a wall
depicted on its plans which it believed marked the boundary between the right of
way and the property. NECR's Director of Engineering, Rick T. Boucher,
testified that the wall had a two-foot vertical exposure and was approximately 50
feet in length horizontalty. In contrast, John P. Mayo, a roadmaster and track
inspector for NECR, testified that the wall used to define the boundary was
approximately four to five feet long. He testified that he was uncertain whether
anyone measured the property line prior to the embankment's repair. The wall is
only visible in a small areain light of the placement of the rip-rap rocks.

19.

NECR "used [the wall] as a guideline to repairf] [and] reestablish the toe of [the]
slope." (Tr. at 174.) l\4r. Boucher explained that NECR rebuilt the slope of the
embankment in its prior location "[t]o the best of what we could do[.]" (Tr. at

177.) The repair brought the tracks back into compliance with federal railway
safety regulations and rail traffic resumed.
20.

The parties agree that prior to the landslide, the embankment had undulating
contours and a varied pitch slope that was covered by foliage, which has been
altered by NECR's repair.

21.

Mr. Boucher credibly opined that the rebuilt slope is "less steep[,]" which he
considers "an improvementl.f" Id.

22.

As part of his survey in anticipation of this litigation, Mr. Nalette measured the
extent of the newly placed rip-rap rocks and determined that a portion of them
extend onto the southern edge of the property. Mr. Nalette depicted the extent of
the rip-rap rock on an annotated version of the '91 Survey, admitted in evidence as

Plaintiffs'Exhibit 3.
23.

A portion of rip-rap rock, marked as pile "A" on Plaintiffs' Exhibit 3a, lies wholly
within the property but predates the JuIy 2017 rain event. It was placed by the
railroad with Mr. Gordon's consent in an effort to stabilize a drainage culvert.
Plaintiffs represent that they "are not pursuing pile A . . . for the injunction." (Tr.
at223.)

24.

Mr. Gordon credibly testified that rip-rap rock is "still . . . rolling, some of it, into
[his] shop" and that "[e]very now and then [he does] find a stone after arainstorm
or something that * different sized stones roll off the bank and right into [his]
[garage] bay there." (Tr. at 126.) Mr. Gordon is no longer "comfortable working
in that bayf.l" Id.

25.

Mr. Gordon also explained that the rip-rap rock makes it "impossible" to access an
area"a little bit wider than a wheelbarrow" between the rear of his buildings and
the embankment, which he previously used to maintain the properly and clear
fallen snow. (Tr. at 129-30.)

26.

Removal of the rip-rap rock from the property would cost NECR approximately
5150,000 and may take the right of way out of service for approximately three to
four days, resulting in the suspension of rail service. Mr. Boucher opined that this
type of repair would have "a direct impact . . . on the railroad and its revenue," as
well as a possible indirect impact "on surrounding communities, [because] the
customer fwould be] paying higher rates[.]" (Tr. at 169.)

27.

With regard to whether removal of the rip-rap rock would necessitate a suspension
of railroad operations, Mr. Boucher concededthat it might not:
Q: So properly engineered, do you agree or disagree that a retaining wall
could be constructed on the railroad property to hold back the
embankment?

A: Yes, it could.

Q: All right. And that retaining wall would comply with federal
regulations, right?

A: Designed properly, correct.
Q: All right. And it would just be more costly for the railroad to
accomplish that than using Mr. Gordon's property, correct?

A: It would be more costly to install the wall.
Q: Right. Now, you say it will disrupt traffic on the railway, but isn't it
true that there are spaces of six, seven hours between trains that equipment
could be used to be installing this retaining wall?

A: You would jeop ardizethe integrity - those small work windows would
not be enough time frame to make that application and maintain the
integrity of the slope.

Q: You are telling me that you can't drive pilings into the slope made out of
steel that will hold back the wall and then build the wall while train traffic
is intermittently going back and forth?

A: There's been no soil samples or anything taken to prove that that would
be a reliable way to approach it.

Q: That's a possible option, right?

A: It may be.
(Tr. at 197-98.)

28.

Mr. Boucher acknowledged that NECR occasionally purchases properly needed
for infrastructure proj ects.

II.

Conclusions of Law and Analysis.

A.

Whether Phintiffs' Common Law Trespass Claims are Preempted by
the ICCTA.

Plaintiffs' Verified Complaint alleges two causes of action: common law trespass
and common law negligence. The court has diversity jurisdiction pursuant to
28 U.S.C. $ 1332. As a result, the outcome of Plaintiffs' substantive claims is governed

by Vermont law. See McCarthy v. Olin
federal court sitting in a diversity case

Corp.,ll9 F.3d 148, 153 (2dCir.1997) ("A

will apply the substantive law of the forum state

on outcome determinative issues") (citing Erie R.R. Co. v. Tompkins,3O4 U.S. 64

(1e38)).

Under $ 158 of the Restatement (Second) of Torts, which the Vermont Supreme
Court has adopted, a trespass occurs whenever one o'enters or causes a thing to enter the
land of another." Canton v. Graniteville Fire Dist. No. 4,762 A.2d 808, 810 (Vt. 2000);

Harrisv. Carbonnea'u,685 A.2d296,299 (Vt. 1996). "[An] actor,withouthimself
entering the land, may invade another's interest in its exclusive possession by throwing,

propelling, or placing a thing either on or beneath the surface of the land or in the air
space above

it."

RESTATEMENT

(SecoNo) oF ToRTS $ 158 cmt. i. (1965).

NECR contends that the Surface Transportation Board ("STB"), an administrative
review board established by the ICCTA, has exclusive jurisdiction over this suit and asks
the court to hold that Plaintiffs' trespass claim is preempted. Passed by Congress in
1996, the ICCTA abolished the Interstate Commerce Commission and replaced it

the STB. The ICCTA was intended to avoid "the balkarization and subversion"

with

of

nation-wide railway regulations. Island Park, LLC v. CSX Transp.;559 F.3d 96,102 (2d

Cir.2009) (quoting lowa, Chi. & E. R.R. Corp. v. Wash. Cty.,384F.3d557,559 (8th Cir.
2004)). To further this intent, the ICCTA contains the following preemption clause:
The jurisdiction of the Board

over-

(1) transportation by rail carriers, and the remedies provided in this
part with respect to rates, classifications, rules (including car service,
interchange, and other operating rules), practices, routes, services, and
facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or
discontinuance of spur, industrial, team, switching, or side tracks, or
facilities, even if the tracks are 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.
49 U.S.C. $ 10501(b). "Transportation" is defined as:

(A) a locomotivq car) vehicle, vessel, warehouse, wharf pier, dock,yard,
property, facility, instrumentality, or equipment of any kind related to the
movement of passengers or property, or both, by rail, regardless of
ownership or an agreement concerning use; and

(B) services related to that movement, including receipt, delivery, elevation,
transfer in transit, refrigeration, icing, ventilation, storage, handling, and
interchange of passengers and property[.]
4e

u.s.c.

$ 10r02(e).

Under the Supremacy Clause of the United States Constitution, "[w]here a state
statute conflicts with, or frustrates, federal law, the former must give

way." CSX Transp.,

Inc. v. Easterwood,50T U.S. 658, 663 (1993). In this case, NECR alleges both express
and implied preemption under the

ICCTA. Express preemption occurs when a federal

statute directly forecloses competing state law through its plain text. See Cipollone v.

Ligget Grp., 1nc.,505 U.S. 504,517 (1992) (express preemption occurs "[w]hen
Congress has considered the issue of pre-emption and has included in the enacted

legislation

a

provision explicitly addressing that issue"). Implied preemption may "be

inferred if the scope of the statute indicates that Congress intended federal law to occupy
the legislative field, or if there is an actual conflict between state and federal law." Island

Park,559 F.3d at 101 (internal quotation marks omitted). "[T]he

pW

asserting that

federal law preempts state law bears the burden of establishing preemption." In re

Methyl Tertiary Butyl Ether Prods. ("MBTE") Liab. Litig.,725F.3d65,96 (2dCir.
2013) (citing Wyethv. Levine,555 U.S. 555,569 (2009).

1.

Express Preemption.

"If the stafute contains an express pre-emption

clause, the task of statutory

construction must in the first instance focus on the plain wording of the clause, which
necessarily contains the best evidence of Congress' pre-emptive intent ." Easterwood,
507 U.S. at664; see also Island Park,559 F.3d at 101 ("Congressional intent'primarily

is discerned from the language of the pre-emption statute and the statutory framework
surrounding

it."') (quoting Green Mountain

R.R. Corp. v. Vermont,404F.3d 638, 641

(2dctu.200s).
"In the interest of avoiding unintended encroachment on the authority of
the States, however, a court interpreting a federal statute pertaining to a
subject traditionally governed by state law will be reluctant to find preemption. Thus, pre-emption will not lie unless it is 'the clear and manifest
purpose of Congress."'

Easterwood,50T U.S. at 663-64 (quoting Rice v. Santa Fe Elevator Corp.,331 U.S. 218,
230 (re47)).

Even

"[i]f

a federal

law contains an express pre-emption clause, it does not

immediately end the inquiry because the question of the substance and scope

of

Congress' displacement of state law still remains." Altria Grp., Inc. v. Good,555 U.S.

70,76 (2008). As one Circuit Court of Appeals has observed, "the presumption against
preemption is applicable to 'areas of law traditionally reserved to the states, like police
powers and property law[.]"' Franks Inv. Co. v. Union Pac. R.R. Co., 593 F.3d 404,407
'(5th
Cir. 2010) (en banc) (quoting Davis v. Davis (In re Davis),170 F.3d 475, 481 (sth

Cir. 1999) (en banc)); see also Island Park, 559 F.3d at 101 ("Indeed, when courts are
called upon to address questions of express or implied pre-emption, the analysis always
begins with the assumption that the historic police powers of the States are not to be
superseded by the Federal Act unless that was the clear and manifest purpose

of

Congress.") (internal quotation marks and alterations omitted).
In Island Park,the Second Circuit examined the scope of ICCTA preemption over
state regulatory claims in the context of a request for an injunction to prevent the closure

of a private railroad crossing. An administrative law judge found the private crossing
gave rise to several safety concerns and the New York State Department

of

Transportation issued a closure order. The plaintiffs argued that the state's decision
violated the express preemption provisions of the ICCTA and the FRSA by encroaching
on federal authority to regulate rail transportation and railroad safety standards. The

district court, in turn, found that the ICCTA preempted the state's closure order because
the order attempted to regulate rail transportation.
Reversing the district court's decision, the Second Circuit observed that "all state
laws that may reasonably be said to have the effect of managing or governing rail

transportation" are preempted. Island Park, 559 F.3d at 102 (intemal quotation marks

omitted). However, that does not foreclose the application of state laws that have "a
more remote or incidental effect on rail transportation." Id. (internal quotation marks

omitted). Because the preemption inquiry o'focuses on the degree to which the challenged

regulation burdens rail transportation," notwithstanding the ICCTA's expansive

definition of "rail transportation[,]" the Second Circuit found that although the term
"does include property . . . related to the movement of passengers or property by rail,"
the closure of a private rail crossing did "not 'relate

to' 'the movement of passengers or

property . . . by rail."' Id. at 103-04 (internal quotation marks omitted) (quoting
49 U.S.C. $ 10102(9XA). Accordingly, the Circuit vacated the district court's order to

the extent that it relied on ICCTA preemptio

n.

See

id. at 110 ("The exercise of state

authority to close the rail crossing at issue pursuant to N.Y. Railroad Law $ 97(3) is not
pre-empted under ICCTA or FRSA.").

In concluding that ICCTA preemption did not apply in Island Park,the Second
Circuit distinguished its decision in Green Mountain Railroad Corp. v. Vermont,404
F.3d 638 (2d, Cir.2005). There, the Second Circuit found ICCTA preemption where a

Vermont environmental permitting regulation blocked the development of a
transshipping facility along the Connecticut River. In doing so, the Circuit pointed out
that not all state law is preempted:

[S]tates and towns may exercise traditional police powers over the
development of railroad property, at least to the extent that the regulations
protect public health and safety, are settled and defined, can be obeyed with
reasonable certainty, entail no extended or open-ended delays, and can be
approved (or rejected) without the exercise of discretion on subjective
questions.
Green Mountain R.R., 404 F.3d at643. Because the state environmental regulation in
question was discretionary, did not include objective schedules or standards for its

applicability, and would give rise to lengthy delays for administrative determinations, the
Second Circuit concluded that the regulation directly burdened the railroad's operations.
See

id. ("We need not draw a line that divides local regulations between those that are

preempted and those that are not, because in this case preemption is clear[.]"). In
contrast, in Island Park,no such burden was found

. See 559 F.3d at 102-03.

Application of the Second Circuit's precedent to this case reveals that Plaintiffs
have established that NECR is engaged in an ongoing trespass on their property and no

10

plausible interpretation of the term "transportation" includes this type of tort. For this
reason, they contend NECR was not and is not engaged in "transportation by rail carrier"
as

required by 49 U.S.C. $ 10501(bX1) when it placed and refused to remove the rip-rap

rocks on the property.

NECR counters that Plaintiffs' trespass claim is expressly preempted by the

ICCTA's plain language establishing exclusive STB jurisdiction over "transportation by
rail carriers," 49 U.S.C. $ 10501(b), and that preemption confers upon the STB
"exclusive jurisdiction over all issues affectingrail transportation andlor operations[.]"
(Doc. 11 at 6)r Because Plaintiffs' proposed remedy may destabilize the repaired
embankment and result in the suspension of rail operations, NECR contends it is squarely
preempted.

To determine whether the ICCTA preempts Plaintiffs' narrowed kespass claim,

"[t]he appropriate questions are: what does the state [aw] seek to regulate and does the
[law] burden rail transportation?" Island Park,559 F.3d at 103;

see also

Franks,593

F.3d at 414 ("The relevant question under the ICCTA is whether [the] dispute invokes
laws that have the effect of managing or governing, and not merely incidentally affecting,

rail transportation."). Because the ICCTA broadly defines "rail transportation" to include
any "propety[] . . . related to the movement of passengers or property by rail,"
49 U.S.C. $ 10102(9)(4.), Plaintiffs' narrowed trespass claim presents a close question.

A trespass claim generally "does not seek to impose its authority over the tracks
themselves[,]" nor does it have'the effect of managing or governing rail

transportation[.]" Island Park,559 F.3d at 102-03;

see also Emerson v.

Kan. City S. Ry.

Co.,503 F.3d 1126,1130 (10th Cir 2007) (declining to find express preemption where

plaintiffs alleged "possibly tortious acts committed by

a landowner

who happens to be a

railroad company"). Removing the rip-rap rock on the property may burden NECR, but
I

NECR's statement of the law sweeps too broadly. It is not enough to'oaffecf'rail
transportation and/or operations: "For a state court action to be expressly preempted under the
ICCTA, it must seek to regulate the operations of rail transportation." Franla Inv. Co. v. Union
Pac. R.R. Co., 593 F.3d 404,413 (5th Cir. 2010) (en banc).
11

NECR failed to establish that it will necessarily burden o'the movement of passengers or
property by

rail[.]"

49 U.S.C. $ 10102(9XA). NECR's representative conceded that

it

may be possible to remove the rip-rap rocks without a suspension of rail operations.
Based on the record before the court, Plaintiffs' continuing trespass claim is therefore not

clearly within the scope of express ICCTA preemption. See Island Park,559 F.3d at 104

("We think it important to emphasize that although ICCTA's pre-emption language is
unquestionably broad, it does not categorically sweep up all state regulation that touches
upon railroads-interference with rail transportation must always be demonstrated").

NECR has failed to sustain its burden to show express preemption.

2.

Implied Preemption.

To the extent thatthe court rejects express preemption, NECR urges it to find

implied preemption because the ICCTA's broad language reflects a congressional intent

for federal law to occupy the field of railroad operations with which Vermont trespass
law would interfere. Implied preemption may "be inferred if the scope of the statute
indicates that Congress intended federal law to occupy the legislative field, or
an actual conflict between state and federal

if there is

law." Id. at 101 (internal quotation marks

omitted).

In determining whether implied preemption exists, Circuit Courts of Appeals have
adopted the STB's own two-pronged "as applied" test.2 Pursuant to this test, a state law
is not preempted

if: "(1) it is not unreasonably burdensome, and (2) itdoes not

discriminate against railroads." N.Y. Susquehanna

& W. Ry. Corp.

v. Jackson 500 F.3d

238,253 (3d Cir. 2007). Although the Second Circuit has not determined whether it

will

adopt the STB's two-pronged "as applied" test, in Green Mountain Railroad, it noted that

"[a]s the agency authorized by Congress to administer the [ICCTA], the [STB] is

2

Franks, 593 F.3d at 414 ("We adopt the STB's as-applied preemption analysis as
appropriate for implied preemption under the ICCTA."); l[ Y. Susquehanna & W. Ry. Corp. v.
Jaclaon,500 F.3d 238,253 (3d Cir. 2007) (o'Thus, according to the Board, state regulation is
permissible if it passes a two-part test: (l) it is not unreasonably burdensome, and (2) it does not
discriminate against railroads").
See

t2

uniquely qualified to determine whether state law should be preempted by [the ICCTA]."
404F.3d at 642 (internal alterations and quotation marks omitted).

With regard to the first prong of the STB's test, NECR has not established that
Plaintiffs' narrowed request for injunctive relief will be unreasonably burdensome.
Although removing the rip-rap rock will have some impact on NECR's operations
because it

will

cost an estimated $150,000, with regard to other impacts NECR's

witnesses testified either vaguely or inconsistently. For example, on direct examination,

Mr. Boucher opined that removing the rip-rap rock in the toe of the embankment would
take the rail line out of service for an estimated "three, four days[,]" disrupting the

shipment of commodities and forcing passenger service to "shut down[,]" so that
passengers

'hould

[have to] take the bus." (Tr. at 167.) On cross examination, however,

he acknowledged that it "may be" possible to build a retaining

wallto stabilize the slope

during the six to seven hour periods between trains, without taking the line out-of-

service. (Tr. at 198.)
The cost of remedying tortious conduct is generally not determinative of implied

preemption. See New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321,335 (5th
Cir. 2008) (expressing "doubt whether increased operating costs are alone sufficient to
establish unreasonable interference with railroad operations.") (internal quotation marks

omitted). Consequently, a state's trespass law is generally not deemed in conflict with
federal law governing railroads. Cities of Auburn & Kent, WA is instructive. There, the
STB held that:
[T]here are areas with respect to railroad activity that are reasonably within
the local authorities' jurisdiction under the Constitution . . . . tA] local law
prohibiting the railroad from dumping excavated earth into local waterways
would appear to be a reasonable exercise of local police power . . . . The
railroad also could be required to bear the cost of disposing of the waste
from the construction in a way that did not harm the health or well being of
the local community.

l3

2 S.T.B. 33O,lgg7 WL 362017, at*6 (IggD.3 As Plaintiffs observe, NECR's position to
the contrary would "ha[ve] no obvious limit[.] . . . If the ICCTA preempts a claim
stemming from improperly dumped railroad ties, it is not a stretch to say that the Railroad
could dispose of a dilapidated engine in the middle of Main Street-a cheap way to be rid

of an unwanted rail car." Emerson,503 F.3d at 1132. Protection of Plaintiffs' property
rights under state law may cost NECR time and money, but

will not inevitably impose

"unreasonabl[e] burdenfs]" on rail transportation. Island Park,559 F.3d at 105.

With regard to the second prong of the STB's test, Vermont's well-established
trespass law is facially neutral law that does not discriminate against NECR or railroads

in general.
[T]he ICCTA does not expressly preempt the generally applicable state
common law[.] . . . State tort law obviously has no pre-approval
component, as it necessarily addresses wrongs that have already occurred;
and if the Landowners prevail on remand, the applicable remedy under state
law would not deny the Railroad the ability to operate or to proceed with an
STB-approved activity.

'NECR's cited authority is inapposite. For example,inWaubay Lake Farmers Ass'nv. BNSF
Ry. Co.,2014WL 4287086, at *3 (D. S.D. Aug. 28,.2014), the plaintiffs sought "'specific relief
requiring IBNSF] to construct its roadbed to conform to and allow for natural drainage."' In
other words, the plaintiffs sought a court order directing the railroad to make alterations to its
own property, including the roadbed underlying the tracks themselves. Similarly,inJones Creek
Inv'rs, LLC v. Columbia Cty., Ga.,98 F. Supp.3d 1279 (S.D. Ga. 2015), the plaintiffs brought
tort claims alleging damages as a result of the railroad's replacement of an upstream culvert on
its own property that "was an integral and necessary repair to the railway infrastructure." Id. at
1294. Likewise, in Pere Marquette Hotel Partners, LLC v. United States, 2010 WL925297, at
*4 (E.D. La. Mar. 10,2010), the plaintiffs alleged injuries flowing from "the negligent design
and construction of roadbeds and other areas of track[,]" not trespass by the railroad on their
property. Finally, inTubbs v. Surface Transp. Bd.,8l2 F.3d 1 l4l,ll44-45 (8th Cir. 2015), the
plaintiffs sought direct appellate review of an STB decision, and the Eighth Circuit subsequently
applied a "'quite narrow"' standard of review that asked only whether the STB's decision was
"based on a permissible construction of the statute" and whether its finding of preemption was
"supported by substantial evidence" and "reasonable inferences[.]" To the extent that the Tubbs
court considered the appropriate test for implied preemption under the ICCTA, it approved of the
STB's two-part "as applied" test and concluded that the STB's finding of preemption for claims
oobased
on alleged harms stemming directly from the actions of a rail carrier, BNSF, in designing,
constructinB, and maintaining an active rail line" was appropnate. See id. at 1146 (internal
quotation marks omitted). None of these cases hold that preemption extends to a railroad's
trespass on non-railroad property.

t4

Emerson,503 F.3d at I 130-3 l; see also Green Mountain R.R., 404 F .3d at 643
(observing that state laws ooenacted for the protection of the public health and safety, and
other generally applicable, non-discriminatory regulations . . . would seem to withstand

preemption").
For the foregoing reasons, although a close question, on the limited record before
the court, NECR has failed to establish that requiring it to remove the trespassing
material on the Gordons' property will have a more than "incidental effect on rail

transportation" and will "impose . . . authority over the tracks themselvesl.l" Island

Park,559 F.3d at 102-03 (internal quotation marks omitted). For the purposes of the
pending motion, it has thus failed to establish that either express or implied preemption
applies.

B.

Whether Plaintiffs' Common Law Trespass Claims are Preempted by
the FRSA.

NECR asserts that Plaintiffs' narrowed request for preliminary injunctive relief is
barred by the FRSA, a federal statute establishing a comprehensive regulatory scheme for

railroad safety. "FRSA provides the appropriate basis for analyzing whether a state law,
regulation or order affecting rail safety is pre-empted by federal law." Island Park,559
F.3d at 107. Only state laws "covering the same subject matter" as FRSA regulations are
preempted by the statute's preemption clause. Easterwood,5OT U.S. at 664. The
Supreme Court has held that a federal regulation covers the same subject as state law

when it "substantially subsume[s] the subject matter of the relevant state law."

Id. In

2007, Congress amended the FRSA's preemption clause to exclude state law claims for

property damage which allege that apar1ry "failed to comply with the Federal standard

of

care established by a regulation . . . covering the subject matter[,]" or a state law claim

alleging a violation of state law that "is not incompatible" with a federal regulation. Pub.

L. 110-s3 (121 Stat.453) (Aug.3,2007).
Plaintiffs' narrowed request for injunctive relief does not ask that NECR be
ordered to rebuild the embankment.

It seeks only to have the trespassing rip-rap rock

removed. An order directing NECR to remove the rocks would thus leave it free to
15

comply with safety regulations in any way it saw

fit.

The FRSA therefore does not

"substantially subsume" Plaintiffs' continuing trespass claim and it is not preempted by
the FRSA. Easterwood,50T U.S. at 664.

C.

Whether Plaintiffs Are Entitled to Preliminary Injunctive Relief.

L.
'A

Standard of Review.

preliminary injunction is an extraordinary remedy never awarded as of right.

In each case, courts 'must balance the competing claims of injury and must consider the
effect on each party of the granting or withholding of the requested

Nat.

Res.

relief."'

Winter v.

Def. Council, 1nc.,555 U.S. 7,24 (2008) (quotingAmoco Prod. Co. v. Yill.

of

Gambell,48O U.S. 531,542 (1937)) (internal citation omiued). "A parly seeking a

preliminary injunction must generally show a likelihood of success on the merits, a

likelihood of irreparable harm in the absence of preliminary relief that the balance of
equities tips in the party's favor, and that an injunction is in the public interest." Am.

Civil Liberties Union v. Clapper, 804 F.3d

617

, 622 (2d Cir.2015); see also New York ex

rel. Spitzer v. Operation Rescue Nat'L,273 F.3d 184,193 (2dCir.2001) (acknowledging
standard applies to trespass claim).
Where the movingparty does not seek injunctive relief against a government

entity acting in the public interest, an injunction may also issue where the parfy can
establish "sufficiently serious questions going to the merits of its claims to make them

fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the
moving party." Otoe-Missouria Tribe of Indians v. N.Y. State Dep't of Fin. Servs.,769
F.3d 105, 110 (2d Cir.2014) (internal quotation marks omitted).

2.

Whether Plaintiffs Established A Substantial Likelihood of
Success on the Merits.

Under Vermont law, atrespass occurs whenever one o'enters or causes a thing to
enter the land of another." Canton,762 A.2d at 810. NECR intentionally placed rip-rap

rock on the property. Although the area in question is relatively small, NECR has
proffered no credible evidence to the contrary. The Gordons have therefore shown a

t6

substantial "likelihood of success on the merits" of their narrowed trespass claim attrial.

Clapper,804 F.3d at 622.

3.

Whether Plaintiffs Have Shown Irreparable Harm.

"To establish irreparable harm, aparty seeking preliminary injunctive relief must
show that 'there is a continuing harm which cannot be adequately redressed by final

relief

on the merits' and for which 'money damages cannot provide adequate compensation."'

Kamerlingv. Massanari,295F.3d206,2l4 (2dCir.2002) (quoting N.Y. Pathological &
X-Ray Labs., Inc. v. 1N5,523F.2d79,81 (2d

Cir.l975)). "A showing of irreparable

harm is 'the single most important prerequisite for the issuance of a preliminary

injunction."' Faiveley Trans. Malmo AB v. Wabtec Corp.,559 F.3d 110, I l8 (2d Cir.
2009) (quoting Rodriguez v. DeBuono,

17

5 F .3d 227 ,234 (2d Cir. 1999)). The Second

Circuit has directed district courts to "determine irreparable injury by considering what
adverse factual consequences the plaintiff apprehends

if

an injunction is not issued, and

then considering whether the infliction of those consequences is likely to violate any
the

of

plaintiff s rights." Time Warner Cable v. Bloomberg L.P. of N.Y.C.,118 F.3d 917,

924 (2d Cir. 1997).

Plaintiffs assert that NECR's placement of the rip-rap rock limits their use of the
property for their business and personal pursuits, and restricts their access and ability to
rnaintain their buildings.a Atthough they proffer ample evidence in support of the

disruptive impacts of the landslide, they present less compelling evidence of the
disruptive impact of NECR's continuing trespass. For example, they do not contend that
they cannot engage in their businesses because of the rocks, only that with respect to

o

NECR appears to concede the latter point. See Doc.30 at 15-16 (asserting that rip-rap rocks
interfere with "routine maintenance work" and citing Mr. Gordon's testimony that rip-rap rocks
intrude upon "a wallovay that goes all the way around the backside of the building so we can
maintain that area so the debris arid anything else doesn't fillin behind there" and so as to
address "[t]he snow [that] slides offthe roof[] . . . [and] goes down behind there.") (Tr. at 129131).
L7

activities in the garage bay, they are reluctant to do so.' Th.y also do not contend that the
property presents a unique location for their activities which cannot take place elsewhere.
To the contrary, they suggest that NECR should offer to purchase the property to remedy
its continuing trespass.

Plaintiffs' contention that'hnauthorized interference with

a real

properfy interest

constitutes irreparable harm as a matter of law," (Doc. 2 at 5) (citing Brooklyn Heights
Ass'n, Inc. v. Nat'l Park Serv.,777

F

. Supp.

2d 424,435 (E.D.N .Y.2}ll)), does not hold

true where the trespass neither extinguishes the property's value, nor prohibits its use

entirely.

See, e.g.,

L.A. Mem. Coliseum Comm'n v. Nat'l Football League, 634

F

.2d

1197, 1202 (gth Cir. 1980) (denying injunctive relief because "a diminution of the market
value of plaintiff s property" was a monetary injurfy] which could be remedied by a
damage award."); Hunt v. Bankers Trust Co., 646 F. Supp. 59, 64 (N.D. Tex. 1986)

(finding no irreparable harm where the "value of the property both with and without [a]
proposed zoning change [could] be determined and Movants be fully compensated.").

Here, Plaintiffs have not shown that by virtue of NECR's placement of rip-rap rock on a
small portion of their property, they have been denied all effective use of the property,
sustained irreparable physical damage to it, or have lost the property's entire fair market

value. They have therefore failed to establish irreparable harm. This conclusion is
underscored by the fact that the damages they allege are readily compensable through a

monetary award. See Faiveley, 559 F.3d at 1 18 ("Where there is an adequate remedy at

law, such as an award of money damages, injunctions are unavailable except in
extraordinary circumstances.") (internal quotation marks omitted).
Because Plaintiffs have failed to demonstrate that "there is a continuing harm

which cannot be adequately redressed by final relief on the merits and for which money
damages cannot provide adequate compensatiofl[,]" Kamerling,295 F .3d

at2l4 (internal

quotation marks omitted), they have failed to establish irreparable harm.

5

Contrary to NECR's contention, Plaintiffs do claimto "be[] exposed to [public health and
safety] harms because of the alleged trespass." (Doc. 30 at 14)
18

4.

Whether the Balance of Equities Tips in Plaintiffs' Favor and
Whether an Injunction is in the Public Interest.

Even if Plaintiffs could establish irreparable harm and an inadequate remedy at
law, the balance of equities favors NECR because Plaintiffs' requested injunction is not
in the public interest. See Winter,555 U.S. at 24 (expl,aining that

"[i]n each

case, courts

must balance the competing claims of injury and must consider the effect on each

pW

of the granting or withholding of the requested relief.") (internal quotation marks

omitted). An order requiring NECR to remove the rip-rap rock may cause NECR to
experience substantial costs that may ultimately result in higher expenses for producers

who ship their commodities by rail and increased costs for passengers using rail
transportation. In contrast, the continued inconvenience to Plaintiffs resulting from the
trespass is significantly less substantial.

Balancing the effect of granting or withholding of the requested relief, NECR
be harmed

will

if it is granted, while Plaintiffs may be compensated by an award of money

damages, including damages for loss of use and diminution in value,

if it is not.

See, e.9.,

jury verdict holding [the defendant] liable for
changing the natural flow of surface water onto plaintiffl's] . . . property and causing
Canton,762 A.2dat 809 (affirming

ooa

damage in the amount of $27,000."). Because Plaintiffs fail to establish that the
ooextraordinary
remedy" they request is in the public interest and the balance of equities

tips in their favor

a

preliminary injunction is not warranted. Winter,555 U.S. at24.

CONCLUSION
For the foregoing reasons, Plaintiffs' motion for a preliminary injunction (Doc. 2)
is DEMED.
SO ORDERED.

Dated at Burlington, in the District of Vermont, this

*o*of

United States District Court

t9

Decemb

er,2oll.