The Illinois State Toll Highway Authority--Petition for Declaratory Order |
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Kenyatta Clay
Surface Transportation Board
23 January 2017
[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
[Notices]
[Pages 7912-7913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01379]
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SURFACE TRANSPORTATION BOARD
[Docket No. FD 36075]
The Illinois State Toll Highway Authority--Petition for
Declaratory Order
By petition filed on November 23, 2016, the Illinois State Toll
Highway Authority (Tollway) seeks a declaratory order confirming that,
in its effort to acquire permanent and temporary easements for the
construction of five highway bridges over railroad tracks owned and
operated by Soo Line Railroad Company, d/b/a Canadian Pacific Railway
(CP) in Chicago, Ill., the Tollway's state law eminent domain authority
is not preempted by federal law under 49 U.S.C. 10501(b). The Tollway
seeks expedited consideration and has submitted a procedural schedule
that provides for comment by CP as well as a period for public comment.
On December 9, 2016, CP filed a ``limited reply'' in opposition to
the Tollway's request for a declaratory order and proposed procedural
schedule. CP argues that the Tollway disregards the fact that the
construction of the five highway bridges would lock the layout of the
tollway into an alignment that goes across and through CP's Bensenville
Yard. Therefore, CP asserts that the scope of this proceeding should be
broadened to consider the ramifications that the Tollway's project
would have on the Bensenville Yard. CP also requests that the Board
allow limited discovery and proposes a procedural schedule that allows
for discovery, CP's substantive reply, and public comment.\1\ In the
event the Board were to disallow discovery, CP proposes an alternative
procedural schedule, with replies due on February 23, 2017.
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\1\ On December 21, 2016, the Tollway filed a motion for leave
to file a surreply to CP's December 9, 2016 limited reply. On
January 3, 2016, CP filed a motion for leave to file a reply to the
Tollway's surreply. The Board will grant both motions and will
consider the filings in the interest of compiling a more complete
record. See City of Alexandria, Va.--Pet. for Declaratory Order, FD
35157 (STB served Nov. 6, 2008) (allowing reply to reply ``[i]n the
interest of compiling a full record); Denver & Rio Grande Ry.
Historical Found.--Pet. for Declaratory Order, FD 35496, slip op. at
3 (STB served Feb. 23, 2012).
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As discussed below, the Board will institute a proceeding to
consider whether 49 U.S.C. 10501(b) preempts the Tollway's eminent
domain authority to acquire the temporary and permanent easements
needed to construct highway bridges over CP's rail tracks, as well as
to consider the implications of the Tollway's prospective plans to
cross or go through the Bensenville Yard.
Background
The construction of the Western Access Interchange, which involves
the proposed construction of five highway bridges over CP's railroad
tracks, is one stage of the Tollway's Elgin O'Hare Western Access
Project (EOWA Project), a multi-stage project to improve the
transportation infrastructure near O'Hare International Airport
(O'Hare) by creating access to the western side of O'Hare. (Tollway
Pet. 2; CP Reply 4.) The EOWA Project involves the construction of an
east-west tollway (the Western Access Tollway) that approaches O'Hare
from the west and a north-south tollway (the Western Bypass) that would
connect I-90 north of O'Hare to I-294 south of O'Hare via the airport's
western perimeter. (CP Reply 4.) The Tollway's petition pertains to the
Western Access Interchange, which is the planned interchange between
these two new tollways.
CP has requested that the Board broaden the scope of this
proceeding to consider the southern leg of the Western Bypass, because
``construction of the Western [Access] Interchange commits the Western
Bypass to an alignment through Bensenville Yard,'' which is located
immediately south of O'Hare and is CP's only rail yard in the Chicago
Terminal. (CP Reply 9.) CP states that construction of the Western
Access Interchange involves plans to build the highway bridges and a
section of the southern leg of the Western Bypass to Irving Park Road,
just north of the Bensenville Yard and that the Tollway has already
commenced construction on a part of the tollway immediately south of
the Bensenville Yard, from I-294 north to the yard's southwest property
line. Id. Thus, CP argues that it is inevitable that the Tollway will
seek to complete the Western Bypass through the Bensenville Yard.
The Tollway states that, while its ultimate goal is to connect the
Western Access Tollway to I-294, the current plan is for the Western
Access Tollway to stop at Irving Park Road, north of the Bensenville
Yard. (Tollway Pet. 30.) The Tollway states that the phases involving
the crossing of the Bensenville Yard are the last two phases of the
entire EOWA Project, with construction projected to start no earlier
than 2020. (Tollway Pet. 16-17, 30.) The Tollway asserts that CP's
objections in this proceeding to these last phases of construction are
premature, as the plans for these phases have not developed past the
conceptual layout stage, and it would thus be impossible to determine
whether the phases would unreasonably interfere with railroad
operations. (Tollway Pet. 31.) The Tollway states that ``if and when
the Tollway elects to pursue this work and [CP] refuses to cooperate,
the Tollway will return to the Board with a subsequent petition related
to the Bensenville Yard issues.'' (Tollway Pet. 30.) The Tollway also
notes that CP's argument for considering the impact on the Bensenville
Yard has been dismissed as premature by the United States District
Court for the Northern District of Illinois, see Soo Line R.R. v. Ill.
State Toll Highway Auth., Case No. 15-C-10328 (N.D. Ill. Mar. 29,
2016), and CP's appeal of the dismissal is currently pending before the
United States Court of Appeals for the Seventh Circuit.
Discussion and Conclusions
The Board has discretionary authority under 5 U.S.C. 554(e) and 49
U.S.C. 1321 \2\ to issue a declaratory order to eliminate a controversy
or remove uncertainty in a case that relates to the subject matter
jurisdiction of the Board. The Board has broad discretion to determine
whether to issue a declaratory order. See Intercity Transp. Co. v.
United States, 737 F.2d 103 (D.C. Cir. 1984); Delegation of Auth.--
Declaratory Order Proceedings, 5 I.C.C.2d 675 (1989). The Board may
also provide guidance to assist other government agencies and courts in
appropriate circumstances. See U.S. Envtl. Prot. Agency--Pet. for
Declaratory Order, FD 35803 (STB served Dec. 30, 2014); Mid-Am.
Locomotive & Car Repair, Inc.--Pet. for Declaratory Order, FD 34599
(STB served June 6, 2005). In this case, it is appropriate to institute
a proceeding so that the Board can address whether Sec. 10501(b)
preempts the Tollway's eminent domain authority to acquire the
temporary and permanent easements needed to construct highway bridges
over CP's tracks, as well as the potential implications of crossing or
going through the Bensenville Yard. The
[[Page 7913]]
Tollway and CP have presented related issues that ultimately may be
relevant to future construction plans and activities for the EOWA
Project. Therefore, it is appropriate to institute a proceeding to
provide guidance on the issues raised by both the Tollway and CP.
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\2\ The Surface Transportation Board Reauthorization Act of
2015, Public Law No. 114-110, recodified certain provisions of title
49, United States Code, redesignating 49 U.S.C. 721 as Sec. 1321.
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The Board will establish a procedural schedule for the filing of
additional pleadings. The Tollway's petition will serve as its opening
statement. CP's substantive reply and comments from other interested
persons will be due by February 23, 2017. In its substantive reply, CP
should provide an analysis that details the impact of the proposed
construction projects on its rail operations. The Tollway and other
interested parties may respond to CP's reply only on the issue of the
potential crossing of the Bensenville Yard by March 16, 2017.
CP also requests that the Board allow for limited discovery on the
Tollway's alternative alignment options, the Tollway's plans regarding
the Bensenville Yard, and the basis of the Tollway's expert opinions.
CP's request for discovery will be denied. The Board often does not
provide for discovery in declaratory order proceedings.\3\ Nor is it
apparent that discovery is necessary here. Alignment options for the
tollway were analyzed and discussed in the Environmental Impact
Statements for the EOWA Project, which are publicly available and which
CP cites in its reply. (Tollway Surreply 4; CP Reply 8.) These
Environmental Impact Statements also provide information regarding the
Tollway's prospective plans for the Bensenville Yard.\4\ To the extent
that CP wishes to challenge the Tollway's expert witness's findings on
and observations of CP's rail operations, CP possesses the information
on its own operations needed to call into question the bases for the
expert witness's conclusions. For these reasons, the Board will not
order discovery in this proceeding.
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\3\ See, e.g., CSX Transp. Inc.--Pet. for Declaratory Order, FD
33388 (Sub-No. 101), slip op. at 5 (STB served Aug. 27, 2008).
\4\ See Elgin O'Hare-West Bypass Study: Tier Two Final
Environmental Impact Statement (Oct. 2012), Sec. 3.4.2. The Final
Environmental Impact Statements are available on the Illinois
Department of Transportation's Web site at http://apps.dot.illinois.gov/fileexplorer/?search=environment/Elgin-Ohare%20final%20EIS.
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It is ordered:
1. A proceeding is instituted.
2. CP and other interested persons may file substantive replies to
the Tollway's petition by February 23, 2017.
3. The Tollway and interested persons may file responses to CP's
reply, limited to only the issue of the Bensenville Yard, by March 16,
2017.
4. CP's request for limited discovery is denied.
5. The Tollway's motion for leave to file a surreply is granted.
6. CP's motion for leave to file a reply to the Tollway's surreply
is granted.
7. Notice of the Board's action will be published in the Federal
Register.
8. This decision is effective on its service date.
Decided: January 17, 2017.
By the Board, Rachel D. Campbell, Director, Office of
Proceedings.
Kenyatta Clay,
Clearance Clerk.
[FR Doc. 2017-01379 Filed 1-19-17; 8:45 am]
BILLING CODE 4915-01-P