FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 5, 2010

JOHN LEY

 CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 09-16079

 

D. C. Docket No. 08-00089-CV-5

MADGLEAN PACE,

MARVIN PACE,

CHARLES PACE,

MELVIN PACE,

SHELLEY PACE, JR.,

Plaintiffs-Appellants,

versus

CSX TRANSPORTATION, INC.,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Southern District of Georgia

 

(August 5, 2010)

Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.

DUBINA, Chief Judge:
Appellants, Madglean Pace, Marvin Pace, Charles Pace, Melvin Pace, and

Shelley Pace, Jr., (“the Pace family”), appeal from the district court’s grant of

summary judgment in favor of CSX Transportation (“CSX”) on their state law

nuisance claim stemming from CSX’s construction and use of a side track adjacent

to property owned by the Pace family in Ambrose, Georgia. The Pace family

argues that the district court erred in finding that their claim is preempted by

section 10501(b)(2) of the Interstate Commerce Commission Termination Act of

1995, 49 U.S.C. § 10101–11908 (2006). 

After reviewing the record, reading the parties’ briefs, and having the

benefit of oral argument, we affirm the district court’s grant of summary judgment

in favor of CSX. 

I. BACKGROUND

The Pace family owns land in Ambrose, Georgia, that is adjacent to a

railroad right of way held by CSX. The mainline track has been in continuous

operation for over 100 years and is currently used by trains to carry a variety of

goods including automobiles, grain, construction materials, and intermodal freight. 

Until 2006, the track abutting the Pace family’s property was a single track

used by trains traveling in both directions. In September 2006, CSX constructed a

roughly two-mile-long side track parallel to the mainline track. The side track

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allows faster trains to pass the slower trains and trains traveling in different

directions to pass one another. The purpose of this particular side track is to solve

the traffic problems caused by a sixteen-mile stretch of mainline track that was

previously without a side track. 

In January 2008, the Pace family filed suit in Superior Court in Coffee

County, Georgia, alleging that the operation of the side track caused an increase in

noise and smoke due to the traffic on the track and made their land virtually

unusable. CSX removed the case to federal court in November 2008. In July

2009, CSX moved for summary judgment on the basis of federal preemption and

the district court granted the motion. This appeal followed. 

II. STANDARD OF REVIEW

This court reviews de novo a district court’s grant of summary judgment, 

Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007), and reviews de

novo a district court’s conclusion that federal law preempts a state law claim, Cliff

v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir. 2004). 

III. DISCUSSION

The Supreme Court has identified three types of preemption: (1) express

preemption; (2) field preemption; and (3) conflict preemption. This That & The

Other Gift & Tobacco, Inc. v. Cobb County, Ga., 285 F.3d 1319, 1322 (11th Cir.

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2002). The type of preemption relied upon by the district court in granting

summary judgment, express preemption, occurs when Congress has explicitly

indicated its intention to preempt state law in the text of the statute. English v.

Gen. Elec. Co., 496 U.S. 72, 78–79, 110 S. Ct. 2270, 2275 (1990). If Congress

does not explicitly preempt state law, however, preemption still occurs when

federal regulation in a legislative field is so pervasive that we can reasonably infer

that Congress left no room for the states to supplement it, known as field

preemption. Id. at 79, 110 S. Ct. at 2275. Even when Congress has neither

expressly preempted state law nor occupied the field, state law is preempted when

it actually conflicts with federal law. Id. Conflict preemption arises either when it

is impossible to comply with both federal and state law or when state law “stands

as an obstacle” to achieving the objectives of the federal law. Crosby v. Nat’l

Foreign Trade Council, 530 U.S. 363, 372–73, 120 S. Ct. 2288, 2294 (2000)

(internal quotation marks omitted). 

The statute at issue in this case, the Interstate Commerce Commission

Termination Act (ICCTA), provides in section 10501(b) that jurisdiction of the

Surface Transportation Board (STB) is exclusive over “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

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be located, entirely in one State[.]” 49 U.S.C. § 10501(b)(2). It also states that

“[e]xcept 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.” Id. § 10501(b). 

The parties agree that construction and operation of a side track is covered

by the ICCTA; however, the Pace family argues that its nuisance action for

monetary damages is not preempted by the ICCTA, because it is not directly

related to the operation and use of the side track. The Pace family urges the court

to take a remedy-centered approach and find an action is only preempted where a

remedy is sought that would demand changes in the railroad’s core operations. 

The district court disagreed with the Pace family’s framing of the issue and

concluded that because the Pace family sought a remedy of any sort for the

construction and use of a side track, the claim is expressly preempted by the

ICCTA. 

We agree with the district court’s conclusion. When this court considers

preemption issues, “we start with the assumption that the historic police powers of

the states are not superseded by federal law unless preemption is the clear and

manifest purpose of Congress.” Cliff, 363 F.3d at 1122. Here, the language of

section 10501(b) plainly conveys Congress’s intent to preempt all state law claims

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pertaining to the operation or construction of a side track. Accordingly, we hold

that the Pace family’s state law nuisance claim for monetary relief is expressly

preempted by the ICCTA. 

Our holding is also supported by persuasive authority. The Surface

Transportation Board has taken the position that state law nuisance claims are

preempted by the ICCTA. See, e.g., Mark Lange, S.T.B. Finance 35037, 2008 WL

219583, at *3 (S.T.B. Jan. 28, 2008) (finding state law nuisance claim seeking

damages of $20,000 is preempted by ICCTA). Further, although no circuit court

has discussed the preemptive scope of the ICCTA in the context of a state law

nuisance claim, a Fifth Circuit case strongly supports our holding that the Pace 1

family’s nuisance claim is preempted. In Friberg v. Kansas City Southern

Railway, Co., 267 F.3d 439, 444 (5th Cir. 2001), the Fifth Circuit reversed a jury

verdict entered against a railway company on a business owner’s state law

negligence claims stemming from the railway’s expansion and use of a side track. 

There is a First Circuit case denying removal jurisdiction over a state law nuisance claim 1

because the claim was not completely preempted by the ICCTA. See Fayard v. N.E. Vehicle

Servs., LLC, 533 F.3d 42, 47 (1st Cir. 2008). Complete preemption, as a narrow exception to the

well-pleaded complaint rule, carries a higher burden than proving a defense based on preemption. 

See e.g., Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1344 (11th Cir.

2009). The First Circuit concluded that “preemption may well be a defense to . . . nuisance

claims, but the conditions have not been met to authorize removal through the extreme and

unusual outcome of complete preemption.” Fayard, 533 F.3d at 49. The First Circuit noted in

dicta that nuisance claims seeking monetary damages are likely preempted by the ICCTA in the

same way as claims seeking a modification of the railroad’s operations. Id. 

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Specifically, the business owner complained that the railway’s decision to extend

the side track resulted in longer and more frequent trains, which often obstructed

customers’ access to the business. Id. at 440–41. The business eventually closed. 

Id. The Fifth Circuit held that the business owner’s state law tort claims were

preempted by the ICCTA, concluding that “[n]othing in . . . the all-encompassing

language of the ICCTA’s preemption clause permit[s] the federal statute to be

circumvented by allowing liability to accrue under state common law, where that

liability arises from a railroad’s economic decisions such as those pertaining to

train length, speed or scheduling.” Id. at 444. 

The same can certainly be said in this case: to permit monetary liability to

accrue under a state law nuisance claim where that liability is based on decisions

the ICCTA purposefully freed from outside regulation would contradict the

language and purpose of the ICCTA. The ICCTA expressly preempts state

remedies involving the operation of the side track. Therefore, we will not permit

landowners to circumvent that Congressional decision through state law nuisance

claims. 

IV. CONCLUSION 

For the above-stated reasons, we affirm the district court’s grant of summary

judgment in favor of CSX on preemption grounds. 

AFFIRMED.

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