case fourteen dash three zero nine four fifteen national or zero two zero fifteen dash four zero two one allied erecting versus surface transportation board at all oral argument and not  these cases boil down to the board's unchallenged statement that if a house central never obtained any operating authority from the i c c or the board the none of allied spy state law claims could be preempted once the board correctly determined that and that is not challenged the board should have simply closed the books send it down to the state court and said you're free to decide the case instead they didn't they engaged in really can you repeat the first sentence that you said he did and there is a lot there and i want to make sure i understand point my boils down to boils down to the fact that if ohio central never obtained any operating with already to operate over allie strax then non of allied state law claims could be preempted as a result well you're saying that you can avoid jurisdiction just by not  filing who's trying to avoid jurisdiction now i'm saying maybe i'm not understanding what you know you say that once it was that once it was determined that they didn't file they didn't authority to operate they since nineteen twenty the interstate commerce act as originally enacted said before you could hold out transportation for hi you had to go to the interstate commerce commission and get a certificate of public convenience is a necessity to operate over an extended line of railroad now they took the interstate commerce commission and ask for authority to serve as it turns out a line a track that starts off three hundred feet east of the central center street bridge in youngstown goes on the north side of  never to hit the campbell works and then it crosses over to the east to go in struthers that did not give them any authority to operate over republik steel tracks which are on the south side right ok all right so at some point the only way that mahoney was able to ever operate over allied tracks or  l t v tracks after l t v acquired republic through merger was to get another certificate unless it operated under the lease the lease as the requirement that all of the operations that were to be handled on behalf of l t v were to be lawful that's at appendix page three one nine at three twenty one it further limits it says your service is to be provided for l t v tubular plant in youngstown ohio they started operating and they operated fine my client of operators that all of a sudden they decided that hey we can provide whatever service we want and they simply began providing it the only problem with that is without a certificate of public convenience necessity from the i c c or the s t b those operations were unlawful if i may just interject and that's i mean this all been very helpful as i understand the poor's response or the government's response here they're saying that may well be true but it's beside the point because the board has jurisdiction over activities on any section of rail on which a carrier is moving goods that are not solely its own you know let's call that interstate commerce or something ok and authorized or not mahoning was doing that mahoning wasn't moving supplies within its own facility or something it was moving goods in the board per what i understand is called the use dr says anytime somebody is doing that on a rail we have jurisdiction and if that weren't the rule then rogue operators would be able to do all kinds of things and we would be able to stop them is that is the use is the use doctrine a valid doctrine and does it apply here your honor i have been practicing since one thousand nine hundred seventy one i started off with general counsel of the interstate commerce commission i have never known that to be the case there is no statutory authority whatsoever for the board to simply don blinders to the fact that there is no operating authority to go back to their main point if there is no operating authority this case is over they should to send it back to the state court for consideration of the trespass state law trespass issues the only just can one close this out real quick let's say they find out that some operator without any authorization is all of a sudden they're using a track i guess the you know somebody is latin do it they're using the track they've got no authorization do this or is it your position that the board would not have jurisdiction to remedies to prohibit it in what statutory or dock trial basis i mean i'm driving at is that the same basis there sir i mean what in that hypo what is the basis of the questions well when you were talking about the  it i'm not sure exactly what the argument is are you saying that or in your case you're saying they it's your property somebody is operating a rail on it beyond their authority we're saying two things number one they this this track was built by republic steel back in the around the turn of the nineteenth century it was never intended to be used for for hire operation and this gets into the the problem we have with mr speicher's testimony that is of record they just decided not to look at it mr speicher's testimony makes it very clear and if you look at the very detailed map which i had a hard time getting to you that's to page four sixty two it shows the old  of republic steel it is a maze of track and the reason we used spur industrial whatever it's these were the type of tracks within the republic ste facility they were not used for enter state commerce purposes though they were used to help take iron ore to the blast furnace is take the stuff to the rolling mill to t whatever they then took it to a set up track where it was put into the bin oh the pennsylvania railroad it cetera they never allowed it that track was sold to l t v it was then to my client my client is not a railroad it wasn't doesn't have anything to do with the railroad industry it wants those tracks to be able to recommend the property that it had bought from republic steel when these guys started parking cars just randomly it made it impossible for him to even use the tracks that he had bought when he bought it he did it solely he guided the easement solely so that the railroad could continue to provide a very limited service the l t v plant that is just west of the center street bridge characterization i mean the state court didn't read it that way the board apparently didn't read it that i mean i don't think we're here to construe the event well but i think that your characterization is disputed it may well be but the problem is if you look at the last part which they never mention in their brief it says to l t v l t v agreed that if its operations interfered with allies they would either get out of the business of using the track or whatever l t v is no longer around end not the current people that own oh how central it's a different group the group that originally acquired it is the one that started this process and my client didn't know what was going on it didn't ask for bills of lading every time a car went by to find out where it was going on or help you out with you know i mean i understand the problem you're describing sounds pretty bad these guys are slobs and leaving the stuff around it's got corrosive materials that are why not ask the board to help you out with this we asked the board to please send this thing back to the state where i met and that's now what you know to come up all right i say why not ask the board to take so you no substantive action on your behalf well we could have filed a complaint now part of the problem so eager to go to state court i guess as opposed to i mean the board is ice i think it was the number two decision they seem to intimate they're ready to help you out with this perhaps i mean this is all about your stick and why you so the way the way i read it is that they're saying to me that hey you called it this and this is part of  literally no role at all but i don't view the board's action is trying to help my client protect his property rights at all and there is and in the absence of a certificate the petition doesn't say this is private track it says it spurs an ancillary and all the stuff that mirrors the language of you know the section number  the board understands your argument as i understand the board's decision in their first case they understand your argument to be that you're arguing it's ancillary track as opposed to main  main line track and then the board makes their decision and says that they don't have to actually reach that question between mainline track and ancillary track because mahoning was not telling the board my argument is private track and it's only like years in this it was sixteen months i think after you filed your petition for rehearing that you tell the board it's private track no isn't that fair what's wrong with that i want to understand if that narrative is wrong is not fair if you look even go back you're talking about the april you never said private track correct disease or were told to go back to september thirtieth ok in that pleading of what year twenty fourteen in that plane alone i refer to these as private tracks twenty nine different times so it is totally false for the board t claim that on never claim with pretty recent i mean one is recent yes but keep in mind the first from two thousand and nine to two thousand and thirteen we waited for a decision then they came out and they found that oh hey boys we've discovered they have authority all right so at that point the whole game starts all over and that's one reason i feel that they made a fatal error when two thousand one until two thousand one hundred eighty one to two thousand and one right he set the stage and he told the board what was going on how it was being operated it wasn't being operated as for operations it was being used to provide switching services which are not you don't need a certificate for that type of service so all of a sudden two thousand  the the new owners summit didn't at all take over they change the style of what's going on my client to didn't realize it and it just it continued but the the the bottom line that the board there is no statutory authority that allows the board out of thin air to say oh these are unlawful operations you've done it for years and by golly you can continue to do it we don't so what was under consideration from zero nine to thirteen they were trying to find the application i guess that's what they say they say their staff looked high and low and couldn't find  questionnaire when i looked at the questionnaire that's wrong but they're talking about is to the north that's when i went and i represented about several the railroads in that area and i said who was it that used to work for the mahoning valley who can give me a straight reading and corroborate what i have said and they said oh call up of mr speicher who filled out that application the original attorney they did it and when you look we don't have the actual application but if you look at the articles of incorporation etc you could see that jones unlawful and did not operate south of the river and that's what finally triggered my realization that wait a minute this this authority has nothing to do with republic tracks ok let's hear from the board i guess  may please the court my name is eric laid on attorney with the surface transportation so it was off sorry my name is eric light an attorney with the surface transportation board here on behalf of the board in the united states with me today is mr erekat he representing the intervenor honing and i'll be taking twelve and mr hockey will be taking three minutes this court has forty three decisions from two separate board proceedings and they're separate cases before the board and they have separate records allied ellie tries to make this case seem more complicated than we really think it is is now talking about preemption really the fact is that the there is one fundamental issue here which is it was reason why i'd like to explain a little bit why it matters because if the tracks are private tracks that means that allied is consensually use its tracks as it wants consistent with state law if  of more specific i really want to understand because i do think mr streeters challenge to what is the statutory says for the board's jurisdiction over i guess everything that provides that the board has jurisdiction over these these types of tracks but it doesn't have regulatory authority doesn't regulate their entry or exit from the system but they're still under the board strict stiction  jurisdiction on the usage of the track and at some point in your argument please explain where that doctrine comes from and how it connects with these sections but anyway i interposed so i'll step back  my point today is that the various regulatory requirements and the implications they might have are not at issue and were not at issue before the board the only thing that was at issue is whether or not these tracks are  jurisdiction and the board use has relied on a test for many years and the case we cite it is called the willis from early two thousand where the board looks at the use of the tracks to determine whether or not they are jurisdictional tracks or whether they're private tracks and under that test as your honor basically said war looks at whether or not the owner of the tracks is using the tracks to move its own goods or if it's used for its holding out to provide service to the public generally for compensation if the latter then they're within the bourse or stiction if the former than their private track but the argument is not directed at that it's directed at the fact that ok maybe there's a little bit of use that goes beyond the soley relating to the owner's material but it wasn't authorize properties case there was a case where a landowner had tracks running across his property to a warehouse and asked the board for declaratory order to declare that the lines were an authorized rail lines and in the alternative it's said if the lines are authorized please construe this petition as a request true for abandonment and the board in that case it said it didn't have to decide what the status of the lines were but if it were an authorized rail line then you would have to file an aband and so what is this statutory or circuit case law basis for saying what you've just said which is the board has jurisdiction over any real way that is used in a certain manner regardless of whether the use of is authorized trace that for me through the really i'm more interested in circuit case law  and ultimately to whatever statutory section supports this idea well allied cites the seven service decision in wisconsin central and it cites it for the proposition that if a real restriction but not the tracks we think over the actually seven circuit supports our position because what the court also said in that case was that if that an abandoned rail line will remain outside of the unless the owner of the line uses it to provide real service and that's what happened here your honor in two thousand and one seventh circuit said what the abandon line it was actually quoting a board decision but it was quoting it favorably right yes so and so what happened here was in two thousand and one mona before we get into our facts i mean i just i am i'm a little frustrated in this case because i don't feel like i understand sort of the statutory regime and we're just diving into this board case and this doctor and it's like well you know congress had something to do at some point with what we're talking about i gather you know and so what let's i mean what statutory provision supports this use doctor an idea that seems to be the linchpin of your argument we're on i think is simply the board's interpretation of terms of the statute like rail line and what are those things ok and so the board has which section what are we talking nine zero one zero nine zero one yeah right so yes this is an interpretive interpretation of rail line well i mean i think when the board came up with the use test to context and so if you're if you're looking at how various track is being used it makes sense to to ask those questions i mean is it soley for the landowner or is it that first through traffic and then all of that makes sense but were those cases decided in a context where someone is arguing woad you can't take jurisdiction over my traffic when you've got a rogue operation here that is completely on the authorize nobody has or certificate and someone's just doing something on the property don't take jurisdiction just stop it well there are cases we cited for example the suffolk and southern case which is a blue what case it's called suffolk and southern it's a board case where somebody started building a rail facility out in new york and they had operation it was a railroad had operations in ohio and the board stopped them from doing that because it was not was not like ancillary to the operations in ohio so it had to have separate authorization so the board yes the board stepped in in that case and said you you cannot do that you cannot build without our ok but under what did it do it under the statutory authority the council cited earlier or did it say you need to get authority to construct a rail line if you're if you're a railroad you need to can store deacon's to construct an additional rail line under ten nine zero one and they didn't get that authority in and they needed it so that was a case where they tried to bring something into the system on the board said no you can't do that because their particular reason the board is where we of state court involvement here no your honor so it wouldn't be fair to say this is a jurisdiction grabber but the board no i don't think so because you know this nothing the board says prevents and the prevents al i'm sorry from going back to state court and trying to adjudicate it's state law property rights now what those effects might be they might have to come back to the board and argue about that and for decision would of course be subject to review but this track is been used as either mainline or ancillary track but let's say the board in made findings that at one point there was a core of the moving through so let's say it turns out that the rewrote that did that never had authority which apparently they didn't can the board force the landowner to let the use continued let's say that track is somehow important to serving somebody down the line can the board say well it's too bad you know maybe they were not their eyes but right now we're going to do because it's important to interstate commerce we're to authorize it and it's too bad that you let them do it when they didn't have authority but this is the status quo now so we're authorizing well generally there are two things you need in order to provide service you need authorisation from the board and you need the appropriate state law property rights or contractual rights if the board gives a party regulatory authority to to operate that doesn't necessarily  upon that party the necessary state law property right they have to go out and get it and this case is a little different because the operations started no late i mean i think there's some dispute in the record but at least since two thousand and one when they obtained the l t v easement they had a property interest and then they didn't have like you say they didn't have board authorization so what we would do in this case is if they came in and said please authorize this we would we might grant after the fact authorization so they would have both of those elements at that point i'm not sure if that answers your question you know ok but you would leave it to the state to determine the scope of the easement or not but yes the state state court would determine the scope of the easement and as you question what would happen if the state court found that there was valid property interest under the l t v easement because that's that's really how it reads but if they came back and said look there really is no stake or property interest then i think the there would be a fair argument that to make that wait a second the used test assumes that you have a valid property interest if they can make that argument and maybe the board would accept that on the other hand i think there would be an argument and i don't want to get out in front of the board here because i don't think the has addressed this precise question it's possible of the court could say the board can follow the lead of the supreme court in thompson versus texas mexican real ray and say that you know the interest interstate commerce are so important that you can't take them off the line even if they don't at this point have a valid property interest even if they did that there were over that would still what the supreme court said in in the text mexico ace was that the law would and it would involve the lease but it was still a case where the lease was terminated according to its terms and the supreme court said no you can't kick them off you can't stop them from operating without i c c authorization did you say in the course of that answer that it's conceivable that the board in further proceedings might hold that a lack of authorization creates an exception to the use doctrine for purposes of the board's jurisdiction and i'm saying yeah this this issue has not been addressed but i mean that seems really strange to me i mean jurisdiction is the power to decide something right and and in years you're here saying the board has the power to decide because of the use doctrine and asking us to say the same in your suggesting that we could say that and then it goes back to the board in the board says well actually there's an exception to this doctrine that the sixth circuit said we had jurisdiction under and so we don't have jurisdiction anymore that's a suggests to me that the basis for all of this is a little shaky it's like we're kind of making this up as we go along you know  well i mean i'm just trying to hold out as a now and i truly appreciate your candor and i mean i but so in your brief you say that you know this use test is longstanding and judicially affirmed we have a hundred sixty six circuit case does that case i have to confess i haven't read it i'm certainly going to disaster case queerly adopt this doctrine in the manner that you're advocating it today and it was fifty years ago that case by case yes you know and i think that case does talk about the used you know prove the use toast but i'm struggling here with is that i don't think it  line ok so they're gloss are they defined in regulations promulgated by the board i don't believe so you know so i mean it's just it's just it's unusual you know i mean this is all just sort of this like nebulous stuff around a real big word and ok that's that's all right that's helpful i'm just trying to get my bearings and he in for the question we were all pretty excited talk about this us here is something i want to go a little sideways from what i was going to talk about but to address a couple of points that were raised by the prior council and in your questioning one the question of private track and whether this is private track and whether allied ever allowed other service to be performed i think is a bit of a red herring private track being defined as track used exclusively by the honor to serve its own purposes on the east of the center bridge property  allied gave an easement to allow somebody else to use the tracks it's not exclusively for its own purposes it's it may have retained rights to use the tracks but it's not for its exclusive purposes there's at least two people using it so i really don't think that private track as mr streeter said ally really didn't have a problem when it bought the property in ninety three with how the property was being used at that time it was only later when it really had a dispute with the owner of some at the purchaser in two thousand and one and how it was using the property that it started having problems and you keep people who simply end yes i'm sorry so what that ignores is the fact that in one nine hundred ninety when moaning valley entered into a track and tried to greenman with conroe that owned a yard at the end of the tracks it got authority from conroe to go over those tracks to move freight from the castillo industrial park which is outside of the property through the yard and then take it on its tracks over the easement and out the other end all the way to the  west to to c s x where would interchange that track so that movements in those movements for somebody other than l t v were already taking place at the time that ally first became the owner of the person under whose authority were they taking six ancillary switching track in which case it would not have needed any authority at that time there is because there's no filing required for a determination of that we don't know what their purpose was  or what their interpretation was at that time later when it was evidently move when they started moving traffic for other parties the board has concluded that that turned it into a rail line but that was it was already being used for other purposes not for private purposes or not just for o t v at that initial time that's my three minutes but i'm happy to answer any other hundred ninety six the interstate commerce commission and the s t b had no jurisdiction over spur industrial whatever that were located solely in one state now these are solely in one state however congress was concerned that they didn't want states to continue to interfere with interstate commerce so what they did in one nine zero six that they said ok we're giving exclusive jurisdiction to the board to prevent in effect state interference with interstate operations but at the same time we're stripping the of any laura t over that type of ancillary tracks so it's kind of an ephemeral jurisdiction that's designed to ward off state interference through tort law through things like that but not property law and not contract law and there are a series of federal circuit court decisions that make this point very very clear just tell me again it gave the board jurisdiction over water and it limited or took away as to what it meant here let me let me get the actual wording i'm looking at ten o five a one i guess it's the you're probably talking about or maybe a maybe it's operation abandonment or discontinuance of spur and dust real team switching or side tracks now they do have jurisdiction and what the courts and what congress intended was simply to keep tort law the the litany of things that people try to sue railroads for is unbelievable they wanted to keep those out of the state courts it had nothing to do with property law or with contract law and that's where you get the the it says p s c case where it makes it very clear where you had a contract that were entered into years and years ago circumstances change norfolk southern wanted to back out they said oh this is preempted circuit  it seems to have nothing to do with this issue of whether they're covered by use with that as the typical that it seems to be seeing something much broader which is that in general this is not the kind of question that the board addresses in effect this is a case of first impression now if you apply the fourth circuit case what we're arguing is we have a right to enforce the final provision of the easement agreement and face it these operations had gotten to the point where they were interfering with allies ability to operate its own private property if they had continued to limit their service to l t v and not store cars we have been happily to co exist what we want to do now though is to terminate that  why tex mex the case that was just referred to by board council doesn't apply because in that case the supreme court said because there was a authorize railroad that you can't just simply come in and take away the ease ment because it's part of interstate commerce but then we get back to my basic point which is under one zero nine zero one it says a person may provide transportation over by means of an extended or additional railroad line only if the board issues a certificate authorizing such activities under subsection c but is that that's not a limitation of anything in the act that says that the board has any jurisdiction to force allied which does not want to engage in for railroad operations to have its private property turned into a fo this is to own their rights under the easement has not been decided right that is right that's that's reason i say it should go back to state court to let the state court rule ok i'm sorry what did you just remember my opening comment which i had to slow down and repeat the board says if they do not have a certificate of public convenience necessity then non of allied state law remedies are preempted which means as far as i'm concerned the case should stop right there and they should have said go back to state court and fight it out there and we're not going to get involved with the ancillary track or anything else and if they'd done that we had a clean case we'd gone back to state court we've never met help me out here what the board has not decided their property rights right ok how is that going to get the cited the only way it will get decided is to send it back to state court because the board has admitted in case after case ok but has the board said that you can't go back to state court to decide the property right you know ok haven't and we at in fact in the second case we said hey this is improvidently granted send it back right now ok i'm sorry even council sort of seem to have allowed that there would be a state court decision that would then really inform the board's decision what what what is stopping you from getting this resolved in state court we've been waiting for the board's decisions to come down and become final and of we are firm if you're going now is that the board has made certain findings as to the types of tracks cetera that we feel that they are iranians and therefore if they go back to state court right now we can't collaterally attack them in the state court proceeding but what does that have to do with your contract and property rights which are reportedly the basis if they're saying that they have the right through unlawful operations to continue to operate what can the state law but we really wish they had come from where would the where would this is certain that they have a right to consider to continue the unlawful operations come from i mean basically type of activity on the track right there are two sets of track one to the east of the center street bridge in that case it was those were never anything other than republic states still sold to l t v l t v sold to allied allied owns the tracks allied does not want any operations performed almost tracks other than its own if the case goes back to state court right now you've got the in prime minister of the s t v and the six circuit perhaps saying oh they can do what they want in the face of the statute which says that the only way they can do what they want is to get certificate beforehand ok where does the opinion say they can do whatever they want to me it's written all over it i guess i mean there's a maybe i'm just a little disconnected i mean this is about your stiction it's not about whether they in fact have the right to use the tracks as i understand their argument their whole argument is the board has jurisdiction regardless of whether this use is proper if that word the way we decided this case and not suggest i'm not trying to intimate it would be how does that hurt your fight about whether it's a you know authorized to use in later proceedings in state court in front of work the whole point that you're focused on they're saying they don't care about it and they're not going to it's not part of the board's decisions i read in the second actually what i've called decision number three they have put certain tega on it and said these are ancillary tracks my problem with that is where is the six it says the board doesn't have jurisdiction or authority over among other things operation spur industrial etc what do you think the import of that exclusion is the reason that it was the reason it was put in as i say was to get rid of a series of environmental cases primarily coming out of the west coast where they were blocking the ability of the railroads to take what looked to be a line that was in trost eight commerce and to prevent the big trunk lines from going ahead and doing what they wanted to do so congress figured the way out was say oh well we'll just give the board exclusive jurisdiction but we're not going to give them authority so as a result when when the distinction between jurisdiction and forward there is a big difference because the board if they have authority they could prevent oh how central are mahoning valley from selling the tracks on lot six to one eight to a non railroad but they don't have authority so as a result once the state court makes the decisions you know that it's all that is you can and the operation or whatever and