Finding the railroad's argument "unpersuasive," Judge Hillman said the railroad at no point identified a specific provision under the ICCTA that creates a "substantial question of federal law" necessary for federal ingredient jurisdiction.
However, Judge Hillman said the matter is precisely the type of action that should be brought before the Surface Transportation Board for a determination of whether the ICCTA preempts the town's claims.
Like many cases following Mayer, the federal courts held that local government regulation of towing services is expressly preempted by ICCTA.
Not only does the ICCTA specifically address a state's regulatory authority over motor vehicle safety and similar matters such as financial responsibility and insurance requirements, (22) but its predecessor, the FAAA Act, excepts state regulations that regulate safety, impose highway route controls, limit the size and weight of a motor vehicle or the hazardous nature of its cargo, and require mandatory levels of insurance.
On the one hand, Bush says he's for local control, something the ICCTA also believes in very strongly, Davis said.
But the IEA and ICCTA are united on one necessity -- the need to get out the vote.
Given the court's very broad interpretation of the federal government's preemption authority in the ICCTA, it appears questionable whether any municipality will be successful in challenging preemption of local regulation over railroad activity.
Local governments must focus their efforts on amending the ICCTA to make clear that the Act is not intended to preempt "essential local police power required to protect the health and safety of citizens.
King County then petitioned the STB for a ruling as to whether the ICCTA preempted King County's review authority over the BNSF's Stampede Pass project.
After this decision, the city of Auburn filed its own petition with the STB asking that it find that state and local environmental, land and building use permitting authority are not preempted by federal law, including the ICCTA.
In its ruling, the Ninth Circuit rejected the City's argument that the legislative history of the ICCTA establishes Congress' intent to preempt only economic regulation of rail transportation, not the traditional state police power of environmental review.
According to the court, "there is nothing in the case law that supports Auburn's argument that, through the ICCTA, Congress only intended preemption of economic regulation of the railroads.