The arguments presented by the town's attorney's are downright wrong and the attorneys are intentionally misleading or tragically incompetent.
The attorney's main argument is:
The Board's Decision is fatally flawed for the material error of law of departing
from its precedents without offering a reasoned basis for doing so.
In citing precedents, the attorneys highlighted this phrase in each (one of which was STB Finance Docket #35157):
To qualify for federal preemption under section 10501 (b), the activities must constitute
'transportation' and must be performed by, or under the auspices of, a 'rail carrier'
Either the attorneys didn't bother reading the full decisions or hope no one at the STB will either. Here's what the STB decided in the docket cited above:
We have found in this decision that the Board has jurisdiction over the operations at the
Facility, and, thus, that federal preemption applies to those activities. Consequently, local zoning
and other requirements that could interfere with or prevent the transloading activities are
preempted. We note, however, that, notwithstanding the finding that federal preemption applies
here, historic police powers are retained and state and local government entities can take
appropriate action to protect public health and safety so long as their actions do not serve to
regulate railroad operations or unreasonably interfere with interstate commerce.
Salient points:
1. Board has jurisdiction
2. Local powers are preserved, except when they serve to regulate railroad operations or interfere with interstate commerce.
So, for those who don't want to read, here's the tl;dr (too long; didn't ready) version:
1. Attorneys cite previous STB decisions and claim STB doesn't follow its precedents
2. Cited precedents are actually consistent with STB ruling in this case.
