United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2009 Decided January 22, 2010 

No. 08-1190 

JAMES RIFFIN, 

PETITIONER

v. 

SURFACE TRANSPORTATION BOARD AND UNITED STATES OF 

AMERICA, 

RESPONDENTS

BOARD OF COUNTY COMMISSIONERS OF ALLEGANY COUNTY,

MARYLAND, ET AL., 

INTERVENORS

On Petition for Review of an Order 

of the Surface Transportation Board 

James Riffin, pro se, argued the cause and filed the briefs 

for petitioner. 

Erik G. Light, Attorney, Surface Transportation Board, 

argued the cause for respondents. With him on the brief were 

Deborah A. Garza, Acting Assistant Attorney General, U.S. 

Department of Justice, Robert B. Nicholson and John P. 

Fonte, Attorneys, Ellen D. Hanson, General Counsel, Surface 
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Transportation Board, and Craig M. Keats, Deputy General 

Counsel. 

Charles A. Spitulnik, W. Eric Pilsk, and Allison I. Fultz

were on the brief for intervenors Board of County 

Commissioners of Allegany County, Maryland, et al. in 

support of respondents. 

Before: GINSBURG, HENDERSON and GARLAND, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge GINSBURG. 

GINSBURG, Circuit Judge: The Surface Transportation 

Board denied James Riffin’s petition for an order declaring 

that 49 U.S.C. § 10501(b), a provision of the Interstate 

Commerce Act as modified by the ICC Termination Act of 

1995, preempts all state and local regulations insofar as they 

affect rail lines and that the Board has exclusive jurisdiction 

over Riffin’s activities at one of his properties. Because the 

STB failed adequately to explain its decision, as required by 

the Administrative Procedure Act, we grant Riffin’s petition 

for review and remand this matter to the agency for further 

proceedings. 

I. Background 

Riffin claimed, and the STB assumed, he owns or 

controls (1) an 8.54-mile section of rail line in Allegany 

County, Maryland;*

 and (2) a parcel of land in Cockeysville, 

 

* See James Riffin (Riffin I), STB Fin. Docket No. 34997, 2008 WL 

1924680, 2008 STB LEXIS 242, slip op. at 3 n.9 (May 1, 2008). 

Three days before oral argument of this case, the Board in a 

different proceeding concluded that Riffin “does not own the line.” 
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Maryland adjacent to a rail line known as the Cockeysville 

Industrial Track (CIT). The two properties are about 160 

miles apart. Riffin plans to use his Cockeysville property as a 

maintenance-of-way facility to support the Allegany line. He 

has not begun working on the Allegany line but has done 

extensive work on the Cockeysville parcel. 

Under 49 U.S.C. § 10501(b), “[t]he jurisdiction of the 

Board over (1) transportation by rail carriers ... and (2) the 

construction ... [or] operation of ... facilities ... is exclusive.” 

Riffin petitioned the STB for an order declaring § 10501(b) 

“completely preempts State and local regulation of 

transportation by rail carrier” and the activities at 

maintenance-of-way facilities “are subject to the exclusive 

jurisdiction of the Board.” The STB denied Riffin’s broad 

request on the ground that, although the preemptive effect of 

the statute is great, “there are limits to its scope.” James 

Riffin (Riffin I), STB Fin. Docket No. 34997, 2008 WL 

1924680, 2008 STB LEXIS 242, slip op. at 4, 6 (May 1, 

2008). Turning to Riffin’s properties in particular, the STB 

concluded that, as to the Allegany line, some but not all “state 

and local laws that would otherwise apply would be 

preempted”; Riffin’s activities at the Cockeysville property, 

however, “would not come within the Board’s jurisdiction.” 

Id. at 5–6. At oral argument in this court, Riffin abandoned 

his position that § 10501(b) preempts all state and local 

jurisdiction, conceding that there are limits to the preemptive 

effect of the statute. 

 

James Riffin (Riffin II), STB Fin. Docket No. 35245, 2009 WL 

2942969, 2009 STB LEXIS 428, slip op. at 6 (Sept. 15, 2009). 

That order is not under review here, nor is it part of the record in 

this case. 
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II. Analysis 

We review the Board’s denial of Riffin’s petition under 

the APA, asking whether the agency’s action was “arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law.” 5 U.S.C. § 706(2)(A); see City of 

South Bend, IN v. STB, 566 F.3d 1166, 1169 (D.C. Cir. 2009). 

Precisely how much deference we owe the decision of a 

federal regulatory agency that holds against preemption of a 

state or local law is an open question in this circuit. See

Albany Engineering Corp. v. FERC, 548 F.3d 1071, 1074–75 

(2008) (leaving “open the question of whether or not an 

agency decision that avoids preemption of a state law ... is 

still deserving of Chevron deference”); cf. Wyeth v. Levine, 

129 S. Ct. 1187, 1201 (2009) (quoting Geier v. American 

Honda Motor Co., 529 U.S. 861, 883 (2000) (giving “some 

weight” to agency’s reasoning about preemption)). We need 

not resolve that question in the present case because even if 

we give the Board the deference due the agency under 

Chevron U.S.A. Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837 (1984) (reviewing court should defer to an 

agency’s interpretation of statute it administers), we cannot 

uphold the order under review. 

The STB explained its decision by reference to whether 

Riffin could ship maintenance equipment between his two 

properties over a rail line that he owns or operates: 

The [maintenance-of-way] activities proposed 

by petitioner for the Cockeysville property 

would not be considered to be part of or 

integral to rail transportation by a rail carrier, 

and thus would not come within the Board's 

jurisdiction. Petitioner's statements make clear 

that he cannot operate as a rail carrier on the 
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CIT. The Cockeysville property is 

disconnected from any line of railroad over 

which petitioner may have authority to operate 

as a rail carrier. Even if petitioner were to ship 

his [maintenance-of-way] equipment and 

materials by rail over the CIT to a rail line that 

he owns or operates, petitioner would have to 

arrange transportation with another rail carrier. 

In that situation, petitioner would likely be no 

more than a shipper on the CIT. Accordingly, 

the section 10501(b) preemption would not 

apply to any of petitioner’s planned activities 

at the Cockeysville property. 

Riffin I, slip op. at 5–6 (citing Hi Tech Trans, LLC, STB Fin. 

Docket No. 34192, 2002 WL 31595417, 2002 STB LEXIS 

693, slip op. at 3–4 (Nov. 19, 2002)). 

The STB did not explain why, in order for it to have 

jurisdiction, Riffin must transport his maintenance-of-way 

equipment by rail using tracks he owns or operates rather than 

transporting the equipment by truck or as a shipper over track 

he does not own or operate. At oral argument, Riffin 

represented that, contrary to the STB’s unexplained 

assumption, he plans to move equipment between the 

Cockeysville site and the Allegany line not by rail but by 

truck, following industry practice. Counsel for the STB then 

argued ex tempore that moving maintenance-of-way 

equipment between Cockeysville and the Allegany line by 

truck is not “a reasonable, ... commercially practicable plan.” 

The STB, however, did not address the commercial 

practicability of trucking maintenance equipment in its 

decision and hence we cannot uphold its decision upon that 

basis. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) 

(“a reviewing court, in dealing with a determination or 
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judgment which an administrative agency alone is authorized 

to make, must judge the propriety of such action solely by the 

grounds invoked by the agency”). 

We agree with counsel for the STB that it “would have 

been better if the Board had been clear” about its reason for 

holding state and local regulation of Riffin’s properties is not 

preempted by § 10501(b). The APA requires the agency to 

“articulate a satisfactory explanation for its action including a 

‘rational connection between the facts found and the choice 

made.’” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 42 (1983) (quoting Burlington Truck 

Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). 

The STB’s decision rested upon Riffin’s inability to 

transport maintenance equipment over rail lines he controlled 

even though he contemplated transportation by truck. The 

decision of the Board offers no rationale for assuming Riffin 

would transport equipment by rail or, having made that 

assumption, for denying preemption on the ground that he 

would not control the entirety of the rail lines over which he 

would have to move equipment. If, following the lead of its 

counsel, the agency intends to rest its decision upon a 

standard of commercial practicability for transporting 

equipment by truck, then it must state its reasons for doing so 

and conduct an appropriate analysis. 

III. Conclusion 

We conclude the Board’s order is arbitrary and capricious 

because it does not adequately explain why Riffin’s activities 

at the Cockeysville property do not fall under the Board’s 

jurisdiction and within the preemptive ambit of § 10501(b). 
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The petition for review is therefore granted, the order of 

the Board vacated, and this matter remanded to the Board for 

further proceedings. 

So ordered.