                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-16080         ELEVENTH CIRCUIT
                                                        JUNE 3, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

                       D.C. Docket No. 09-00004-CV-5

UNDRE SMITH,

                                                       Plaintiff-Appellant,

                                    versus

CSX TRANSPORTATION, INC.,

                                                       Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                        ________________________

                                 (June 3, 2010)

Before BARKETT, HULL and COX, Circuit Judges.

PER CURIAM:

      Plaintiff Undre Smith filed suit against CSX Transportation, Inc. in the

Superior Court of Coffee County, Georgia in April 2008, and CSX removed the case
based upon diversity of citizenship. Smith claims that a sidetrack CSX placed and

operates near his home constitutes a nuisance under Georgia law. CSX moved for

summary judgment. The district court granted CSX’s motion, holding that Smith’s

state-law nuisance claim is preempted by the plain language of the Interstate

Commerce Commission Termination Act of 1995, 49 U.S.C. § 10101 et seq. (R.3-50

at 5.) Smith appeals.

      Smith contends that the Act should be interpreted to only preempt state law

claims demanding remedies affecting the core operations of railroads that are

identified in the Act. He concedes that a plaintiff’s claim is preempted when the

plaintiff seeks a remedy that changes a railroad’s core operation. But, Smith contends

that when a plaintiff seeks a remedy demanding an insubstantial change to incidental

operations, the claim is not preempted. CSX responds that under the plain language

of the Act, state law remedies directed at sidetracks are preempted.

      The Act created the Surface Transportation Board. The Act provides that the

Board’s jurisdiction over

      the construction, acquisition, operation, abandonment, or discontinuance
      of spur, industrial, team, switching, or side tracks . . . is exclusive.
      Except as otherwise provided under 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.

§ 10501(b)(2).

                                          2
       Congressional intent “primarily is discerned from the language of the pre-

emption statute and the ‘statutory framework’ surrounding it.” Medtronic, Inc. v.

Lohr, 518 U.S. 470, 486, 116 S. Ct. 2240, 2250-51 (1996) (citation omitted).

Although courts begin the preemption analysis “with the assumption that the historic

police powers of the States are not to be superseded,” the presumption against

preemption dissipates when the intention of Congress is “clear and manifest.” Riegel

v. Medtronic, Inc., 552 U.S. 312, 334, 128 S. Ct. 999, 1013 (2008) (quotations and

citation omitted). Here, Congress’s intent is clear that any state law involving where

to construct or how to operate a sidetrack is preempted.1 For the reasons stated by the

district court (R.3-50 at 3-5), we hold that the text of the Act expressly preempts

Smith’s state-law nuisance claim.

       AFFIRMED.




       1
         This court has considered the Act’s preemption before in Fla. E. Coast Ry. Co. v. City of
West Palm Beach, 266 F.3d 1324 (11th Cir. 2001). Smith’s reliance on that case is misplaced, as
it involved a municipal ordinance not directed to railroad operations. Instead, the ordinance was
directed at a private distribution business operating on leased railroad property.

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