                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0103n.06
                           Filed: February 10, 2005

                                           No. 03-4180

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


CUYAHOGA FALLS                &    HUDSON        )
RAILWAY COMPANY,                                 )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
THE VILLAGE OF SILVER LAKE,                      )    NORTHERN DISTRICT OF OHIO
                                                 )
       Defendant-Appellee.                       )




       Before: GILMAN and SUTTON, Circuit Judges; McKEAGUE, District Judge.*


       SUTTON, Circuit Judge. Cuyahoga Falls & Hudson Railway Company (Cuyahoga Falls)

challenges the district court’s denial of a declaratory-judgment request seeking to preempt the

Village of Silver Lake’s application of a local zoning ordinance to its railroad operation under the

Interstate Commerce Commission Termination Act of 1995 (ICCTA), 49 U.S.C. § 10501, and the

federal Commerce Clause. Because Cuyahoga Falls plans to operate a purely intrastate passenger

excursion train that does not appear to have any conceivable impact on “transportation . . . as part

of the interstate rail network,” id., and because no other trains with any connection to interstate

commerce operate along the same stretch of railroad track, we affirm.


       *
       The Honorable David W. McKeague, United States District Judge for the Western District
of Michigan, sitting by designation.
No. 03-4180
Cuyaho Falls & Hudson Railway Co. v. Silver Lake

                                                   I.


       The Akron Secondary is a 6.5-mile stretch of railroad line that extends from an interchange

with a railroad operated by CSX Transportation in Cuyahoga Falls, Ohio, to an interchange with

Norfolk Southern’s mainline in Hudson, Ohio. Like many other stretches of railroad line that once

provided the major means of transportation for the nation, the Akron Secondary is in a state of

disuse. Neither of its interchanges, for example, is in current service and no freight is currently

transported over it.


       The current owner of the Akron Secondary is the METRO Regional Transit Authority. On

December 30, 2002, METRO and Cuyahoga Falls signed a lease agreement that gave Cuyahoga

Falls the limited right to operate a rail passenger excursion and dinner service over the Akron

Secondary. Cuyahoga Falls’ rail passenger excursion, the record reveals, “proposed to have musical

reviews, stand-up comedy, or murder/mystery/romance productions, with food and beverage

service.” JA 160. Passengers would board the excursion train in Cuyahoga Falls, have dinner as

the train traveled to Hudson and back, then disembark.


       The lease agreement barred Cuyahoga Falls from engaging in any freight services on the line,

and in fact another railroad, Norfolk Southern, retains the right to restart freight operations over the

Akron Secondary. Under the lease agreement, the railroad excursion would begin and end within

Ohio and would service passengers with purely intrastate ticketing and with no connection to

interstate rail passenger service.



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No. 03-4180
Cuyaho Falls & Hudson Railway Co. v. Silver Lake

       Part of the Akron Secondary runs through the Village of Silver Lake, Ohio. On August 2,

2002, Silver Lake filed a lawsuit in the Court of Common Pleas for Summit County, Ohio, to enjoin

METRO and the Adrian & Blissfield Railroad Company (which both parties characterize as a

“brother-sister” affiliate or “alter ego” of Cuyahoga Falls, see JA 14, 168) from violating its zoning

ordinance. The defendants in the state court proceeding then filed a motion to dismiss, “raising

essentially the same federal preemption arguments” at stake in this case, which the state court

rejected. JA 169. On January 23, 2003, the state court parties entered into a “standstill agreement”

under which they agreed to “maintain the status quo on the Property, as to the operation of a dinner

excursion train” until February 25, 2003. JA 175.


       What appeared until that point to be a dispute between a local entertainment service and a

small town became a federal lawsuit on February 21, 2003, when Cuyahoga Falls, invoking the

ICCTA and the Commerce Clause, brought a declaratory judgment action in federal court to halt

Silver Lake’s attempt to enforce its zoning code against the railroad in state court. As stated in its

initial complaint, Cuyahoga Falls sought (1) “declaratory relief . . . that SILVER LAKE’s attempts

at regulating and restricting [its] business activities, by means of the VILLAGE’s Zoning Code, is

preempted by federal law and the United States Constitution” and (2) “injunctive relief in preventing

Defendants, and those acting in concert with them, from taking, and/or continuing to take, actions

to regulate and restrict the business activities” of the railroad. JA 14. The complaint highlighted

that Cuyahoga Falls had filed its federal suit in response to Silver Lake’s “commence[ment of] an

action against . . . [it] in the Court of Common Pleas for Summit County, Ohio.” JA 17. A few



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No. 03-4180
Cuyaho Falls & Hudson Railway Co. v. Silver Lake

weeks later, on March 12, 2003, Cuyahoga Falls withdrew its motion for a preliminary injunction

and refiled its complaint seeking only declaratory relief and, notably, omitting the complaint’s sole

reference to the pending state court action.


       On June 9, 2003, the parties entered into a joint statement of facts that, among other things,

stipulated that Cuyahoga Falls intended to operate a passenger excursion train over the 6.5 miles of

the Akron Secondary without any through ticketing and that Cuyahoga Falls had “no firm

arrangements to institute and provide freight service over the ‘Akron Secondary’ . . . or to operate

the ‘Akron Secondary’ line for any purpose other than passenger excursion trips.” JA 362.

Following this filing, Cuyahoga Falls claimed that its President, Gabriel Hall, received two offers

from unidentified customers seeking to use the Akron Secondary to provide interstate freight

service.


       The district court granted Silver Lake’s motion for summary judgment on August 6, 2003.

Cuyahoga Falls, the court observed, “will not connect its rail passenger service with any other

common carrier railroads . . . . [A]n excursion on the Dinner Train will not be part of any larger,

interstate rail journey.” D. Ct. Op. at 7. “Since the Akron Secondary will not be part of the

interstate rail network,” the court concluded, “Silver Lake’s zoning code is not preempted by 49

U.S.C. § 10501.” Id.




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No. 03-4180
Cuyaho Falls & Hudson Railway Co. v. Silver Lake

                                                    II.


        The principal statute over which the parties disagree is 49 U.S.C. § 10501, which gives the

Surface Transportation Board exclusive jurisdiction over railroad “transportation by rail carrier . . .

in the United States between a place in . . . a State and a place in the same or another State as part

of the interstate rail network.” 49 U.S.C. § 10501(a)(2)(A) (emphasis added). Federal regulation

of railroads, while “pervasive and comprehensive,” Chicago & N.W. Transp. Co. v. Kalo Brick &

Tile Co., 450 U.S. 311, 318 (1981), is not limitless, but rather extends only to “rail carriers” who

engage in transportation over the “interstate rail network.” It is not clear, for example, that

Cuyahoga Falls qualifies as a “rail carrier” given the Act’s extensive registration requirements

necessary to achieve that status.       See, e.g., 49 U.S.C. § 10502(a) (permitting the Surface

Transportation Board to exempt rail carriers whenever application of federal law “is not necessary

to carry out [federal] transportation policy” because “the transaction or service is of limited scope”).


        Nor has Cuyahoga Falls shown that its proposed intrastate dinner excursion train on the 6.5-

mile Akron Secondary concerns the interstate rail network. Section 10501 grants exclusive

jurisdiction to the federal government for “transportation . . . as a part of the interstate rail network.”

Nothing within the statute suggests that purely intrastate transportation that has no bearing on

interstate transportation falls within the federal government’s exclusive jurisdiction. See Fun Trains,

Inc., STB Finance Docket No. 33472 (1998) (declining to exercise jurisdiction over an intrastate

excursion train); Napa Valley Wine Train, Inc., 7 I.C.C. 2d 954 (1991) (same); cf. Magner-O’Hara

Scenic Railway v. ICC, 692 F.2d 441 (6th Cir. 1982) (pre-ICCTA case holding the same). Cuyahoga

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No. 03-4180
Cuyaho Falls & Hudson Railway Co. v. Silver Lake

Falls did not bring to the district court’s attention any other trains that plan to use the Akron

Secondary as part of the interstate rail network, except through an eleventh-hour affidavit that

contradicted facts to which it had previously stipulated. Bolstering our reading of the statute is the

familiar presumption that Congress does not lightly trench upon a state’s authority to regulate purely

intrastate matters. See, e.g., Iowa, Chi. & Eastern R.R. Corp. v. Wash. County, 384 F.3d 557, 561

(8th Cir. 2004) (noting that the ICCTA’s “silence cannot reflect the requisite ‘clear and manifest

purpose of Congress’ to preempt traditional state regulation of public roads and bridges that

Congress has encouraged in numerous other statutes”); see also Solid Waste Agency v. United States

Army Corps of Eng’rs, 531 U.S. 159, 172–73 (2001); Jones v. United States, 529 U.S. 848, 850

(2000).


          Nor do we believe that the dormant Commerce Clause preempts Silver Lake’s regulation of

its own internal affairs through its zoning code. Cuyahoga Falls has not shown that Silver Lake’s

zoning code has the purpose or effect of discriminating against out-of-state parties and has cited no

facially discriminatory provisions of the zoning ordinance. See, e.g., Camps Newfound/Owatonna,

Inc. v. Town of Harrison, 520 U.S. 564 (1997); Hunt v. Wash. State Apple Advertising Comm’n, 432

U.S. 333 (1977).


                                                 III.


          For these reasons, we affirm.




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