[Federal Register Volume 89, Number 210 (Wednesday, October 30, 2024)]
[Notices]
[Pages 86408-86409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25135]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36770]


Township of Pilesgrove, N.J.--Petition for Declaratory Order

    By decision issued on September 13, 2024, in response to a petition 
by

[[Page 86409]]

Township of Pilesgrove, N.J. (Pilesgrove), the Board instituted a 
declaratory order proceeding to determine whether and to what extent 49 
U.S.C. 10501(b) preempts certain local and state laws regarding land 
use and land development by SMS Rail Service, Inc. (SMS). Twp. of 
Pilesgrove, N.J.--Pet. for Declaratory Ord., FD 36770 (STB served Sept. 
13, 2024). The Board also granted a petition to intervene filed by the 
Township of Mannington, N.J. (Mannington), and directed Pilesgrove, 
Mannington, and SMS to confer and jointly submit by October 8, 2024, a 
proposed procedural schedule to govern this proceeding. Id. at 2, 3. 
The decision also ordered that, if the parties failed to agree on a 
procedural schedule, each must file its own proposed schedule by that 
date. Id.
    Counsel for the parties conferred but were unable to reach 
agreement on a proposed schedule. Consequently, each party submitted 
its own proposal. On October 4, SMS proposed the following procedural 
schedule: (1) opening statements by all parties due by November 29, 
2024; (2) comments from other interested persons due by December 30, 
2024; and (3) replies by all parties due by January 20, 2024. (SMS Req. 
4.) SMS asserts that its proposed schedule will ensure a full and 
complete factual record. (Id. at 3.) According to SMS, there have been 
developments on the subject rail line since the townships' petitions 
were filed--including state court proceedings--and there is additional 
information about the line from the last two years related to 
preemption that should be provided to the Board. (Id. at 3-4.) SMS also 
asserts the townships have not adequately supported the allegations in 
their petitions and expresses concern that both townships may seek to 
introduce untimely evidence or argument on reply if they are not 
afforded an opportunity to submit opening statements. (Id. at 3-4, 3 
n.2 (citing Mannington Pet. 8-9).)
    On October 7, 2024, Pilesgrove and Mannington each submitted a 
request for the following proposed schedule: (1) SMS's reply brief due 
by November 15, 2024; (2) Pilesgrove's and Mannington's rebuttal briefs 
due by December 20, 2024. (Pilesgrove Req. 1; Mannington Req. 2.) 
Pilesgrove and Mannington each ask the Board to consider its previously 
filed petition as its opening statement. (Pilesgrove Req. 1; Mannington 
Req. 2.) Mannington asserts that the facts have been fully described 
and explained in the townships' petitions and contends that SMS should 
present any additional facts or clarifications before each of the 
parties files its legal analyses. (Mannington Req. 1.) In addition, 
Pilesgrove argues that the procedural schedule should provide for 
submissions from Pilesgrove, Mannington, and SMS only. (Pilesgrove Req. 
2.)
    On October 7, 2024, SMS replied to Pilesgrove's and Mannington's 
requests. First, counsel for SMS states that his trial/arbitration 
schedule cannot accommodate the November 15 deadline proposed by 
Pilesgrove and Mannington. (SMS Reply 2.) SMS also asserts that Salem 
County (Salem) should be provided an opportunity to participate, noting 
that Salem may provide support for SMS's positions and reiterating its 
position that other interested persons should have an opportunity to 
file comments. (Id. at 2, 4.) \1\
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    \1\ SMS asserts that Mannington's petition to intervene 
``joins'' Salem County but notes that Salem County is not on the 
Board's service list. (Id. at 2.) However, neither Mannington's 
petition to intervene nor the Board's decision granting it includes 
Salem County, and Salem County has not itself petitioned to 
intervene. In any event, the procedural schedule adopted here 
provides an opportunity for other interested persons to participate.
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    No party requests discovery and Mannington explicitly states it 
believes discovery in this case would be unnecessary. (Mannington Req. 
2.) The Board typically does not provide for discovery in declaratory 
order proceedings, see, e.g., Metro Council--Pet. for Declaratory Ord., 
FD 36178, slip op. at 4 (STB served May 22, 2018), and, as no party has 
requested it, a discovery period will not be included in the procedural 
schedule adopted here. However, to ensure that the Board has a 
sufficient record, Pilesgrove and Mannington will be provided an 
opportunity to supplement the record with additional evidence and 
argument before SMS's reply is due, and submissions by other interested 
persons will be accepted, as provided below.
    Based on the forgoing considerations, the following procedural 
schedule will be adopted: Pilesgrove and Mannington may file 
supplemental evidence and argument by November 8, 2024; SMS's reply 
evidence and argument, and submissions by other interested persons, 
will be due by December 9, 2024; rebuttal statements by Pilesgrove and 
Mannington, and SMS's response to submissions by other interested 
persons, will be due by January 7, 2025.
    It is ordered:
    1. The following procedural schedule is adopted:
    <bullet> Pilesgrove and Mannington may file supplemental evidence 
and argument by November 8, 2024;
    <bullet> SMS's reply evidence and argument, and submissions by 
other interested persons, are due by December 9, 2024; and
    <bullet> Rebuttal statements by Pilesgrove and Mannington, and 
SMS's response to submissions by other interested persons, are due by 
January 7, 2025.
    2. Notice of this decision will be published in the Federal 
Register.
    3. This decision is effective on its service date.

    Decided: October 24, 2024.

    By the Board, Scott M. Zimmerman, Acting Director, Office of 
Proceedings.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2024-25135 Filed 10-29-24; 8:45 am]
BILLING CODE 4915-01-P