[PRCo] Re: Septa Snow

[Herb Brannon]

Ah yes, the Cuyahoga Falls & Hudson Railway Company.
It was a dream of some people to operate a "dinner train" between Cuyahoga
Falls and Hudson. The routing took the "dinner train" from downtown Cuyahoga
Falls up the former Pennsylvania RR tracks (now called the Akron Secondary
and owned by Akron METRO Transit Authority) through the Village of Silver
Lake to the town of Hudson, Ohio. Hudson is one of those old (stodgy)
Western Reserve villages who's time had come and gone decades ago. However,
they "rediscovered" themselves and with a lot of lumber and paint, and far
too much money, turned back the hands of time and once again the Western
Reserve village was standing there (complete with ""upscale"" shops,
boutiques, and coffee houses) for all to come to and spend all that money
which no one has any longer.  :-(  The "dinner train" was going to transport
crowds of happy people with full wallets to Hudson to relive the past and
empty those full wallets.

Now, like I said, the routing went through the VILLAGE OF SILVER LAKE.
Silver Lakes' demographics are White= 110% and Other= Minus 0%. The poorest
person in the village has a six-figure income above $500,000.00. Catch my
drift ?? Charts show a few African-American, Hispanic, and Native Americans
among the village makeup. It's my guess these are "indentured servants" who
never leave their plantation. Believe me if any person, of any color, other
than White,walks or drives past the village limit signs the S.L Police are
right on it with a traffic stop and lots of questions. The fine folks of
Silver Lake were not going to have any of this "riff raff" passing near
their homes. "For God's sake, we must protect our children." Therefore a
lawsuit was filed and Silver Lake had the most money and most notable
lawyers and won. Next, this suit was appealed in the United States Court of
Appeals and you can read all about it below in the court documents:


CUYAHOGA FALLS & HUDSON RAILWAY COMPANY, Plaintiff-Appellant, v. THE VILLAGE
OF SILVER LAKE, Defendant-Appellee.

No. 03-4180

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

122 Fed. Appx. 845; 2005 U.S. App. LEXIS 2285

 February 10, 2005, Filed

*NOTICE:   *

 [*1]  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g)
LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING
IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE
SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY
DISPLAYED IF THIS DECISION IS REPRODUCED.

*PRIOR HISTORY:   *

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OHIO.

*DISPOSITION:   *

Affirmed.

*COUNSEL:   *For CUYAHOGA FALLS & HUDSON, RAILWAY COMPANY, Plaintiff --
Appellant: William M. Abbott, Marcoux, Allen, Abbott, Schomer, & Bower,
Jackson, MI.

For THE VILLAGE OF SILVER LAKE, et al., Defendant -- Appellee: Todd M.
Raskin, Timothy R. Obringer, Mazanec, Raskin & Ryder, Cleveland, OH; John M.
Cutler, Jr., Andrew P. Goldstein, McCarthy, Sweeney & Harkaway, Washington,
DC; Robert W. Heydorn, Hoover, Heydorn & Herrnstein, Cuyahoga Falls, OH.

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

The Honorable David W. McKeague, United States District Judge for the
Western District of Michigan, sitting by designation.

*OPINION BY:   *Sutton

*OPINION   *

SUTTON, Circuit Judge. Cuyahoga Falls & Hudson Railway Company (Cuyahoga
Falls) challenges the district  [*2]  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 <javascript:winPopup('lxt','49 U.S.C. 10501')>*, and the federal
*Commerce
Clause <javascript:winPopup('lxt','U.S. CONST. ART. 1 8 3')>*. 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.

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  [*3]  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.

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  [*4]
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<javascript:winPopup('lxt','U.S. CONST. ART. 1 8 3')>
*, 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  [*5]  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 "commencement of an action against . . . [it] in
the Court of Common Pleas for Summit County, Ohio." JA 17. A few 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  [*6]  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. . . . An
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 <javascript:winPopup('lxt','49
U.S.C. 10501')>*." *Id.*

II.

The principal statute over which the parties disagree is *49 U.S.C. §
10501<javascript:winPopup('lxt','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)<javascript:winPopup('lxt','49 U.S.C. 10501')>
* (emphasis added). Federal regulation of railroads, while "pervasive  [*7]
and comprehensive," *Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co.,
450 U.S. 311, 318, 67 L. Ed. 2d 258, 101 S. Ct. 1124
(1981)<javascript:winPopup('lxe','450 U.S. 311, 318')>
*, 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) <javascript:winPopup('lxt','49 U.S.C.
10502')>*(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 <javascript:winPopup('lxt','49 U.S.C. 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.*  [*8]  , 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)<javascript:winPopup('lxe','7 I.C.C. 2d 954')>
* (same); *cf. **Magner-O'Hara Scenic Railway v. ICC, 692 F.2d 441 (6th Cir.
1982) <javascript:winPopup('lxe','692 F.2d 441')>* (pre-ICCTA case holding
the same). Cuyahoga 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) <javascript:winPopup('lxe','384 F.3d 557,
561')>* (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, 148 L. Ed. 2d 576, 121 S. Ct. 675
(2001)<javascript:winPopup('lxe','531 U.S. 159, 172')>
*; *Jones v. United States, 529 U.S. 848, 850, 146 L. Ed. 2d 902, 120 S. Ct.
1904 (2000). <javascript:winPopup('lxe','529 U.S. 848, 850')>*  [*9]

Nor do we believe that the dormant *Commerce
Clause<javascript:winPopup('lxt','U.S. CONST. ART. 1 8 3')>
* 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, 137
L. Ed. 2d 852, 117 S. Ct. 1590 (1997) <javascript:winPopup('lxe','520 U.S.
564')>*; *Hunt v. Wash. State Apple Advertising Comm'n, 432 U.S. 333, 53 L.
Ed. 2d 383, 97 S. Ct. 2434 (1977) <javascript:winPopup('lxe','432 U.S.
333')>*.

III.

For these reasons, we affirm.


On Sun, Jan 30, 2011 at 02:34, Dwight Long <dwightlong at verizon.net> wrote:

> Fred
>
> But down here in slower Delaware we got none of the white stuff, except in
> liquid form!  Our northernmost county was shut for a day--not us.
>
> NOTE TO HERB BRANNON--Herb, can you tell me anything abut the Cuyahoga
> Falls & Hudson Railway?  Did it ever get off the ground?  Is it still
> active, if even in the planning stages?
>
> Many thanks.
>
> Dwight
>   ----- Original Message -----
>  From: Fred Schneider
>  To: pittsburgh-railways at dementia.org
>  Sent: Saturday, 29 January, 2011 17:44
>  Subject: [PRCo] Re: Septa Snow
>
>
>  Tell me 'bout it Dennis.
>  This was the first year I can remember when Bing Crosby's dream about a
> white Christmas came true.   And it just will not go away.
>
>  The wall of snow along the side of my driveway is two feet deep and they
> are calling for more "Caucasian" (my wife's term) today.    Several more
> inches due today.  I have not seen the ground in my yard for several weeks.
>  About the time I think it is going to melt or sublime away, we get another
> Noreaster.    When you have 8 inches on top of 3 inches on top of 6 inches
> on top on top on top on top, you should see the piles in the shopping
> centers!
>
>  And if you think it's bad here, Washington DC got between 4 and 10 inches
> depending on the part of the city.   Those people don't know how to handle a
> single snow flake.   A high school classmate, still loving his job at age
> 70, said his normal 15 minute commute became 2 1/2 hours on Wednesday
> afternoon.   Ed Lybarger's daughter said something nice about working from
> home ... Beth didn't have to suffer the sting and arrows of outrageous
> fortune on Wednesday commuting to work in Bethesda.  I suspect if she had,
> it would have taken her four hours to get home instead of 30 minutes.
>  Friends on the Arlington side talked about having no power, no heat, no
> water for a day.   Alan Schneider claims the explanation given by WMATA
> (Metro) given is that its a southern city so so fighting equipment isn't
> needed.   I would prefer to quote Ed Lybarger regarding shutting government
> down in the snow:  "Be thankful you don't get all the government you pay
> for."
>
>  Maybe the worst storm this year was the one in New York where the mayor
> didn't announce a snow emergency.   That was in December.   My sister-in-law
> had three feet out in her yard in Summit, NJ.
>
>  Here are some of Bob Vogel's photos in Philadelphia in the last few days.
>   The views of the River line were yesterday.   The PCCs on Girard were
> before the service collapsed on Wednesday.   Remember that PTC used to have
> snow sweepers; SEPTA got rid of them.
>
>  northbound at Cove Road/CP HATCH
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2384350
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2384352
>
>  36th Street
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2384353
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2384354
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2384355
>
>  all on Girard Ave
>
>  Frankford
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382957
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382958
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382960
>
>  5th Street
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382962
>
>  Front Street
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382963
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382965
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382966
>
>  westbound leaving Girard
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382950
>
>  eastbound leaving Berks
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382952
>
>  three more at Berks
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382953
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382954
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382955
>
>  westbound approaching Girard
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382967
>  http://chuchubob.rrpicturearchives.net/showPicture.aspx?id=2382968
>
>
>  On Jan 29, 2011, at 7:39 AM, Dennis F Cramer wrote:
>
>  > Philadelphia has had to deal with several major snowstorms over the past
> 30 days or so.  Here in the western part of the state, we have only had to
> deal with nuisance snows--an inch or two just about every day.
>  > http://nomis.rrpicturearchives.net/archiveThumbs.aspx?id=64097
>  >
>  > DF Cramer
>  >
>
>
>
>
>
>


-- 
Herb Brannon
In Cuyahoga Valley National Park