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Date: 10-19-2015

Case Style: Del Grosso v. Surface Transportation Board

Case Number: 15-1069

Judge: Timothy B. Dyk

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney: Mark Bobrowski

Defendant's Attorney: Erik G. Light, William J. Baer, Robert B. Nicholson, Shana Marie Wallace, Craig M. Keats

Description: Diana del Grosso, et al. petitioners") petitioned the Surface Transportation Board
("Board") for a declaratory order that state and local regulations
of a facility owned by Grafton & Upton Railroad Company ("G&U")
were not preempted by the Interstate Commerce Commission
Termination Act ("ICCTA"), Pub L. No. 104-88, 109 Stat. 803. The
Board held that state and local regulations were preempted because
the facility was part of "transportation by rail carrier." 49
U.S.C. § 10501(a)(1). We affirm the Board’s decision that the
facility was operated by a "rail carrier." But because the Board
relied on an erroneous standard in concluding that the activities
at the facility were a part of "transportation," we vacate and
remand. Under the ICCTA, the Board has jurisdiction over
"transportation by rail carrier." Id. Where the Board has such
jurisdiction, it is exclusive. Whether or not the Board is
exercising its regulatory authority over the transportation, state
and local1 laws governing such transportation are generally
preempted. See id. § 10501(b) ("[T]he remedies provided under this
1 In a companion case decided today, Padgett v. Surface Transportation Board, No. 14-2067, slip op. at 7 (1st Cir. Oct. 16, 2015), we confirm that preemption applies to local as well as state regulations.
part with respect to regulation of rail transportation are
exclusive and preempt the remedies provided under Federal or State
law."); Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 157
(4th Cir. 2010); Green Mountain R.R. Corp. v. Vermont, 404 F.3d
638, 642 (2d Cir. 2005); City of Auburn v. U.S. Gov’t, 154 F.3d
1025, 1030 (9th Cir. 1998); see also Borough of Riverdale —
Petition for Declaratory Order, STB Finance Docket No. 33466, 1999
WL 715272, at *4 (S.T.B. Sept. 9, 1999) (preemption even where
rail construction project outside Board’s regulatory authority).
Such preemption is not limited to state and local economic
regulation of rail transportation. See N.Y. Susquehanna & W. Ry.
Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir. 2007); Green Mountain,
404 F.3d at 644–45; City of Auburn, 154 F.3d at 1031. But see Fla.
E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1337–39
(11th Cir. 2001).
In order for an activity to count as "transportation by
rail carrier," it has to be both "transportation" and operated by
a "rail carrier." Tex. Cent. Bus. Lines Corp. v. City of
Midlothian, 669 F.3d 525, 530 (5th Cir. 2012). "Transportation" is
a broad category that includes any "property, facility,
instrumentality, or equipment" connected to "movement . . . by
rail," as well as various "services related to that movement." 49
U.S.C. § 10102(9)(A)–(B). Whether an activity is conducted by a
"rail carrier" is a case-by-case factual determination based on,
inter alia, how much control a rail carrier is exercising over the
activity. See Tex. Cent., 669 F.3d at 530–31 (internal quotation
marks, citations omitted). The Board routinely grants declaratory
orders as to whether particular activities are preempted, but the
ICCTA does not delegate to the Board the determination of whether
state and local law is preempted. See 49 U.S.C. § 10501(b).
Here, G&U is a licensed rail carrier that began
operations in 1873. It owns a railroad line that extends from
North Grafton, Massachusetts, to Milford, Massachusetts. Upton is
a town located between Grafton and Milford. In 2008, G&U decided
to expand its rail yard in Upton and develop it into a rail-to
truck transloading facility. As a part of that plan, G&U undertook
to build a wood pellet facility that would receive wood pellets in
bulk from hopper railcars and transfer them, after some processing
and bagging, onto trucks. G&U also entered into a Terminal
Transloading Agreement with Grafton Upton Railcare LLC ("GU
Railcare"), a part of Dana Companies, a group of companies with
extensive experience in transloading bulk materials. GU Railcare
was neither owned nor operated by G&U. GU Railcare was to operate
the transloading services on behalf of G&U.
By the fall of 2011, G&U finished the wood pellet
facility. At the facility, a vacuum hose is attached to hopper
railcars carrying wood pellets in bulk and sucks the pellets
through a system that removes dust from the pellets. The pellets
are then moved to silos for temporary storage. Additional dust is
then removed from the pellets, and the pellets are conveyed from
the silos, placed in forty-pound bags, and stacked onto pallets,
fifty bags to a pallet. The pallets are then shrink-wrapped and
stored until they are loaded into trucks for final delivery to
retail stores.
The Upton Board of Selectmen concluded that the
activities at the facility were preempted by the ICCTA, 49 U.S.C.
§ 10501(b), and did not seek to regulate them. However, on August
1, 2012, petitioners, who live near the facility, sought a
declaratory order from the Board that the wood pellet activities
were not part of "transportation by rail carrier" under 49 U.S.C.
§ 10501(b) and that state and local regulations were therefore not
preempted. Petitioners complained that the transloading operations
caused them harms such as exposure to excess glare, light
intrusion, noise, and diminution of property values, and that such
harms would be prevented by enforcement of Upton’s zoning by-laws,
which, for example, restrict a building’s height and require
special permits for manufacturing facilities, which permits could
limit noise and above-ground storage. See, e.g., Town of Upton
Zoning By-Law, § 4.2 Table C (height restrictions); id. § 3.1.3
Table A & n.6 (special permit requirements). The petitioners
mounted a two-pronged attack on the railroad’s claim of preemption.
First, they argued that the wood pellet transloading operations
were not "transportation" under the ICCTA because they were
manufacturing activities. Second, they argued that GU Railcare was
not a "rail carrier" under the statute.
With respect to the second issue, petitioners requested
discovery of documents regarding the construction, financing,
operation, management, and ownership of the facility in order "to
determine the real relationship" between G&U, GU Railcare, and Dana
Companies. On January 23, 2013, the Board initiated a declaratory
order proceeding but denied the discovery request by petitioners,
noting that petitioners had access to G&U’s transloading agreement
with GU Railcare and its lease agreement for the rail yard, and
that G&U had also not explained why discovery or additional
documents were needed.
On February 13, 2013, petitioners requested
reconsideration of the Board’s denial of discovery. Petitioners
argued mainly that there was new evidence that "raises significant
questions" regarding G&U. The evidence was that G&U was involved
in a separate litigation with the town of Grafton, Massachusetts,
over a proposed propane transloading facility,2 and that evidence
as to the relationship between G&U and the operator of the other
facility could shed light on the relationship between G&U and the
2 This other case is also being decided today. See Padgett v. Surface Transp. Bd., No. 14-2067, slip op. at 3 (1st Cir. Oct. 16, 2015).
Dana Companies. On May 7, 2013, the Board denied reconsideration.
It concluded that the various agreements already submitted were
sufficient to determine the issue of whether the activities were
being conducted by a "rail carrier," noting that the Board "is
guided [on that issue] by the terms of the agreements between the
railroad and the transloader." It also concluded that the
relationship between G&U and a third party involving a different
transloading facility was not relevant.
On December 5, 2014, the Board issued a declaratory
order. After concluding that the petitioner had standing to raise
the preemption issue, the order declared that the Board had
exclusive jurisdiction over the transloading activities in G&U’s
facility because they constituted "transportation" by "rail
carrier." The Board concluded that the vacuuming, screening,
bagging, and palletizing of the wood pellets were "transportation"
and not "manufacturing" because, although those activities were
"not essential" to transporting wood pellets by rail, they
"facilitate[d]" such transportation by making it "more efficient."
This was so because the activities allowed G&U to transport the
pellets by hopper cars rather than boxcars. The Board also
distinguished the activities in question from manufacturing and
commercial transactions because they did not "change [the] nature
of the product," even though some of the activities, such as
bagging, "may produce some value to the consumer." The Board also
determined that GU Railcare was acting on behalf of G&U in
performing the transloading activities, and so a "rail carrier" was
doing the transporting. It finally determined that GU Railcare was
not a sham set up simply to avoid state and local regulations.
The petitioners sought judicial review. We have
jurisdiction pursuant to 28 U.S.C. § 2342. Under the
Administrative Procedure Act ("APA"), we will not set aside the
Board’s determinations unless they are "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law," or
are "unsupported by substantial evidence." See 5 U.S.C. § 706(2).
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, 43 (1983) (quoting
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168
(1962)); see also Granite State Concrete Co. v. Surface Transp.
Bd., 417 F.3d 85, 91 (1st Cir. 2005).
In this court, both the Board and the railroad argue that
the Board’s decision on the issue of preemption is entitled to
Chevron deference. Chevron U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984). We disagree.
In Wyeth v. Levine, 555 U.S. 555 (2009), the Supreme
Court explained that "agencies have no special authority to
pronounce on pre-emption absent delegation by Congress," noting
that the Court had never "deferred to an agency’s conclusion that
state law is pre-empted." Id. at 576–77 (emphasis in original).
Rather, "[w]here . . . Congress has not authorized a federal agency
to pre-empt state law directly, the weight this [c]ourt accords the
agency’s explanation of state law’s impact on the federal scheme
depends on its thoroughness, consistency, and persuasiveness"; that
is, the agency’s decision is entitled only to Skidmore deference.
Id. at 556 (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)).
Contrary to the Board’s suggestions, nothing in City of
Arlington v. FCC, 133 S. Ct. 1863 (2013), undermines Wyeth. City
of Arlington concerned only whether an agency’s interpretation of
the scope of its jurisdiction is entitled to Chevron deference, did
not even mention Wyeth, and, as the Court explicitly noted, "ha[d]
nothing to do with federalism," id. at 1873, which animates the
Court’s preemption jurisprudence, see, e.g., Wyeth, 555 U.S. at
565; Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
Following Wyeth, the courts of appeals have been
unanimous in concluding that Chevron deference does not apply to
preemption decisions by federal agencies. See Seminole Tribe of
Fla. v. Stranburg, No. 14-14524, 2015 WL 5023891, at *13 (11th Cir.
Aug. 26, 2015) ("[D]eference to an agency’s ultimate conclusion of
federal preemption is inappropriate."); Steel Inst. of N.Y. v. City
of New York, 716 F.3d 31, 39–40 (2d Cir. 2013) ("We do not defer to
an agency’s legal conclusion regarding preemption . . . ."); In re
Universal Serv. Fund Tel. Billing Practice Litig., 619 F.3d 1188,
1200 (10th Cir. 2010) ("An agency’s conclusion that state law is
preempted is not necessarily entitled to deference."); see also St.
Louis Effort for AIDS v. Huff, 782 F.3d 1016, 1024 (8th Cir. 2015);
Do Sung Uhm v. Humana, Inc., 620 F.3d 1134, 1155–56 (9th Cir.
2010). The Fifth Circuit in Franks Investment Co. v. Union Pacific
Railroad Co., 593 F.3d 404 (5th Cir. 2010), has held in particular
that Chevron deference to the Surface Transportation Board on the
question of preemption is inappropriate, holding that "the
[Board’s] decision regarding the preemptive effect of the ICCTA and
the test it uses to determine preemption are not binding on us."
Id. at 413–14 (citing Wyeth). We agree that the Board is not
entitled to Chevron deference on the issue of preemption.3
3 We do not decide whether, if Congress does give express authority to an agency to determine the scope of preemption, Chevron deference would apply. See Medtronic, 518 U.S. at 495–96 (citing Chevron and giving "substantial weight" to an agency’s pronouncement on a preemption issue where there was an express preemption provision in the organic statute and Congress explicitly granted agency authority to exempt state regulations from preemption); see also City of New York v. FCC, 486 U.S. 57, 63–64 (1988). Here, in contrast to statutes where Congress has delegated authority to an agency to pronounce on the scope of preemption, see Wyeth, 555 U.S. at 576 n.9 (listing examples), the Board’s organic statute simply states that its remedies are exclusive and have preemptive effect. See 49 U.S.C. § 10501(b). The Board’s general authority to issue a declaratory order is derived from the APA. See 49 U.S.C. § 721(b)(4); 5 U.S.C. § 554(e).
This does not mean that the Board’s preemption decision
earns no deference. We apply Skidmore deference, which allows us
to defer to the Board in so far as we find the Board’s
interpretations persuasive. See Merrimon v. Unum Life Ins. Co. of
Am., 758 F.3d 46, 55 (1st Cir. 2014). We also defer to the Board’s
factual determinations, such as whether there are efficiency gains
connected to the choice of railcars in transportation. Such
determinations need only be supported by substantial evidence and
a "‘rational basis’ . . . in the facts on the record." See
Granite, 417 F.3d at 91–92 (citation omitted); Ross Express, Inc.
v. United States, 529 F.2d 679, 681 (1st Cir. 1976).
The primary issue on appeal is whether the activities at
the transloading facility at the conclusion of a rail journey —
that is, the vacuuming, screening, bagging, and palletizing of the
wood pellets — constitute rail "transportation," and thus are not
subject to otherwise applicable state and local regulations.
Section 10501 of the ICCTA vests the Board with
"exclusive" jurisdiction over "transportation by rail carriers" and
the "construction, acquisition, operation, abandonment, or
discontinuance of . . . facilities." 49 U.S.C. § 10501(b).
"Transportation" covers "a . . . facility, instrumentality, or
equipment of any kind related to the movement of passengers or
property, or both, by rail," 49 U.S.C. § 10102(9)(A), as well as
"services related to that movement, including receipt, delivery,
elevation, transfer in transit, . . . storage, handling, and
interchange of passengers and property," 49 U.S.C. § 10102(9)(B).
It is well-established that the preemption of state and
local regulation under the ICCTA generally extends to transloading
facilities. Transloading, performed at the "starting or ending
point of the rail component of the movement," New Eng. Transrail,
STB Finance Docket No. 34797, 2007 WL 1989841, at *1 (S.T.B. Jun.
29, 2007), involves transferring bulk shipments from one type of
vehicle to another at an interchange point. See N.Y. Susquehanna,
500 F.3d at 242 n.1. In the language of the statute, transloading
typically involves "receipt, . . . storage, handling, and
interchange" or "transfer in transit" of goods. 49 U.S.C.
§ 10102(9)(B). Such activities are generally preempted. See N.Y.
Susquehanna, 500 F.3d at 247–49 (waste transloading from trucks to
railcars headed to landfills); Tex. Cent., 669 F.3d at 530
(transloading of hydraulic fracking sand, including offloading sand
from railcars to silos and loading onto trucks); Norfolk, 608 F.3d
at 154, 158 (transfer of bulk shipments of ethanol from railcars
onto surface tank trucks); Green Mountain, 404 F.3d at 640, 645
(unloading of bulk salt and cement arriving by rail to load onto
trucks for local distribution or to temporarily store pending
In short, as a general matter, "intermodal transloading
operations and activities involving loading and unloading materials
from rail cars and temporary storage of materials" are a part of
transportation. New Eng. Transrail, 2007 WL 1989841, at *6; see
also, e.g., Tex. Cent., 669 F.3d at 530; Green Mountain, 404 F.3d
at 642. That such transloading activities are integral to the
physical movement of goods, and thus "transportation," is an
"indisputable point." Tex. Cent., 669 F.3d at 530.
Petitioners argue that the activities here do not
constitute traditional transloading operations, but rather
constitute manufacturing, and that state and local regulations are
not preempted. In its decision, the Board did not focus on whether
the activities facilitated transloading of the pellets from rail to
truck. Instead, the Board concluded that the transloading
activities here were "transportation" because the vacuuming,
screening, bagging, and palletizing of the wood pellets allowed G&U
to transport the pellets in hopper railcars, which accommodate
twenty more tons of pellets than boxcars. "Were these activities
performed at the manufacturing facility," the Board reasoned, "the
wood pellets would have to be transported in boxcars, in which case
each pallet containing 50 40-pound bags would have to be blocked
and braced in order to limit movement within the boxcar." That in
turn "would consume space and . . . leav[e] less capacity for the
wood pellets themselves."
We think that the Board’s efficiency rationale goes
beyond the statute and is beside the point. While "transportation"
is "an extremely broad category," Pejepscot Indus. Park, Inc. v.
Me. Cent. R.R. Co., 215 F.3d 195, 199 (1st Cir. 2000), not all
activities connected with rail transportation are considered
"transportation" under the statute. The definition of
"transportation" in the statute, "[w]hile certainly expansive,
. . . does not encompass everything touching on railroads."
Emerson v. Kan. City S. Ry. Co., 503 F.3d 1126, 1129 (10th Cir.
2007). Thus, "manufacturing and commercial transactions that occur
on property owned by a railroad that are not part of or integral to
the provision of rail service are not embraced within the term
‘transportation.’" New Eng. Transrail, 2007 WL 1989841, at *6. In
particular, the ICCTA does not preempt all state and local
regulation of activities that has any efficiency-increasing
relationship to rail transportation. Rather, Subsection (A) of the
definition "focuses on physical instrumentalities ‘related to the
movement of passengers or property,’" while Subsection (B) focuses
on "‘services related to that movement.’" Emerson, 503 F.3d at
1129-30 (emphases added) (quoting 49 U.S.C. § 10102(9)). The
statute is clear on its face that the preempted activities are all
related to the physical movement of "passengers or property."
Here, the proper focus of the Board should have been on
the question of whether the activities — vacuuming, screening,
bagging, and palletizing — facilitated the physical movement of
"passengers or property" (here the transfer of the pellets from
rail to truck), rather than cost efficiency. The questionable
nature of the Board’s rationale is revealed by a simple example.
Under the Board’s rationale, the transloading facility would be
exempt from regulation if it had been constructed and operated by
the rail carrier at the ultimate destination at a retail store.
Under the Board’s reasoning, the retail facility would be exempt
because postponing the bagging and other operations would have made
it feasible to transport the pellets more efficiently in hopper
cars. We think that sweeps too far. The Board’s efficiency
rationale would result in a vast regulatory gap in which state and
local regulation would be eliminated simply because the facilities
were economically connected to rail transportation.4
Courts and the Board have rejected interpretations of
"transportation" that go beyond facilitating the movement of
"passengers or property." In New England Transrail, the Board held
that state and local regulation of shredding of construction debris
that had arrived at a transloading facility from trucks — before
4 Nor would the Board be able to regulate such facilities. See Joint Petition for Declaratory Order — Bos. & Me. Corp. & Town of Ayer, MA, STB Finance Docket No. 33971, 2001 WL 458685, at *4 (S.T.B. Apr. 30, 2001) ("Railroads are not required to obtain Board approval . . . to build or expand facilities that are ancillary to a railroad's operations unless the activity is part of a larger project subject to our jurisdiction (such as construction of a new rail line).").
being loaded onto railcars — was not preempted because such
activity did not constitute "transportation." This was so because
the shredding was not necessary to load the debris onto railcars.
See New Eng. Transrail, 2007 WL 1989841, at *9–10 (noting that "a
shredder is not required to pack into rail cars" the debris that
had arrived from trucks. (emphasis added)). In Emerson, 503 F.3d
at 1129–32, the Tenth Circuit similarly rejected an interpretation
of "transportation" that would preempt state tort law governing a
railroad’s dumping of old railroad ties into a wastewater drainage
ditch. The court held that the dumping did not relate to "movement
of passengers or property" under the ICCTA, 503 F.3d at 1130, and
the interpretation would entail the Board’s jurisdiction over the
railroad’s dumping a "dilapidated engine in the middle of Main
Street" simply because "disposing of unneeded railroad equipment
[would be] cost-conscious," id. at 1132. Here, the Board’s
interpretation is defective because it fails to relate the wood
pellet facility’s activities to the physical "movement of
passengers or property," as opposed to cost efficiency.
New England Transrail is not to the contrary. The Board
held that baling and wrapping of solid waste arriving at a
transloading facility from trucks constituted "transportation,"
noting that such baling and wrapping "permits a wider variety of
rail cars to be used." New Eng. Transrail, 2007 WL 1989841, at *9.
But there preemption was appropriate because the baling and
wrapping was necessary to transload the waste from trucks to
railcars. The Board expressly found that "baling and wrapping are
not the sort of activities that would have value for any other
purpose."5 Id. Here, while the wood pellets are being transloaded
from railcars onto trucks, there has been no Board finding that the
vacuuming, screening, bagging, and palletizing facilitated the
loading of the pellets onto the trucks.
Under these circumstances, a remand is required to
determine whether the vacuuming, screening, bagging, and
palletizing facilitated the transloading of the pellets from the
railcars to the trucks or was done solely for another, unrelated
Two collateral issues remain. First, petitioners contend
that the Board erred in not considering the facility’s "re
pelletization" of the wood pellets. Re-pelletization, a process
which, according to G&U, began around December 2012, involves
screening broken pellets from unbroken pellets, pressing them
together into new pellets, and moving the new pellets into silos
for storage. Petitioners argue that such a process, because it
transforms the nature of the product, constitutes manufacturing and
5 While the fact that the activity adds value to the consumer (or the railroad) does not bar it from being transportation, it is equally clear that merely adding value does not support a claim that the activity is transportation. See New Eng. Transrail, 2007 WL 1989841, at *10.
not rail transportation. But whether or not it does constitute
manufacturing — a matter on which we take no view — petitioners did
not raise this issue before the Board, and it is thus not properly
before us. See Commonwealth of Mass., Dep’t of Pub. Welfare v.
Sec’y of Agric., 984 F.2d 514, 523 (1st Cir. 1993) ("In the usual
administrative law case, a court ought not to consider points which
are not seasonably raised before the agency." (citing United States
v. L.A. Trucker Truck Lines, Inc., 344 U.S. 33, 37 (1952))).
However, we do not preclude the Board from considering this issue
on remand.
Second, while petitioners do not ask for judicial review
of the Board’s determination that G&U was operating the facility
and that GU Railcare was acting on behalf of G&U in performing the
transloading activities, they do argue that the Board erred in
denying discovery, which they claim was necessary to determine
whether the transloading activities were being performed by a "rail
carrier." We see no error.
We generally do not intervene in a lower tribunal’s
discovery order unless it was plainly wrong and resulted in
substantial prejudice to the aggrieved party. See Modern
Cont’l/Obayashi v. Occupational Safety & Health Review Comm’n, 196
F.3d 274, 281 (1st Cir. 1999) (appellate court will "intervene in
such matters only upon a clear showing of manifest injustice, that
is, where the lower court's discovery order was plainly wrong and
resulted in substantial prejudice to the aggrieved party" (citation
omitted)); see also Trailways Lines, Inc. v. Interstate Commerce
Comm’n., 766 F.2d 1537, 1546 (D.C. Cir. 1985) ("[T]he conduct and
extent of discovery in agency proceedings is a matter ordinarily
entrusted to the expert agency in the first instance and will not,
barring the most extraordinary circumstances, warrant the Draconian
sanction of overturning a reasoned agency decision.").
As petitioners seem to concede, the Board’s regulations
permit discovery "regarding any matter, not privileged, which is
relevant to the subject matter involved in a [Board] proceeding,"
49 C.F.R. § 1114.21(a)(1), but they do not require such discovery,
id. ("Parties may obtain discovery . . . ." (emphasis added)). Any
such discovery must still be "relevant to the subject matter
involved," id., and the Board need not order discovery "where the
dispute involves a legal issue and where the record is sufficient
to resolve the controversy without discovery." Md. Transit Admin.
— Petition for Declaratory Order, STB Finance Docket No. 34975,
2008 WL 4281987, at *5 (S.T.B. Sept. 17, 2008). Here, other than
petitioners’ initial barebones request for discovery to determine
the "real" relationship between G&U, GU Railcare, and Dana
Companies, petitioners failed to show a need for any specific
documents. The Board concluded that the transloading agreement and
the lease would suffice to determine whether the relationship
between GU Railcare and G&U was such that the transloading
activities were being performed by a "rail carrier" and that G&U’s
involvement in a litigation with separate parties involving
separate contracts was not relevant evidence to reopen its
discovery decision. In this proceeding, petitioners fail to
explain why any of this is incorrect, let alone why the Board’s
decision resulted in manifest injustice. There is no basis to set
aside the Board’s decision that the activities in question were
conducted by a "rail carrier."

Outcome: We vacate and remand for further proceedings consistent
with this opinion.
All parties shall bear their own costs.

Plaintiff's Experts:

Defendant's Experts:


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