The opinion of the court was delivered by: Hon. Jerome B. Simandle
This dispute centers on the proposed construction of a waste transfer facility on a site located within the Pinelands National Reserve in Mullica Township, New Jersey. The matter is presently before the Court upon the cross-applications for preliminary injunctive relief by Plaintiff J.P. Rail, Inc., d/b/a/ Southern Railroad Company of New Jersey ("SRNJ" or "J.P. Rail"), and Defendant State of New Jersey, Pinelands Commission ("Pinelands Commission"), as well as the motion to dismiss the Third-Party Complaint by Third-Party Defendants Magic Disposal, Inc., Steve Waszen, Sr., Steve Waszen, Jr., Elwood Brokerage, Inc., and Elwood Transload, Inc.*fn1
The primary issue in this litigation is whether the regulation of the proposed facility is exclusively within the jurisdiction of the Surface Transportation Board pursuant to the Interstate Commerce Commission Termination Act ("ICCTA"), Pub. L. No. 104-88, 109 Stat. 803 (1995) (codified as amended at various locations in 49 United States Code), as claimed by Plaintiff, and, thus, beyond the authority of the Pinelands Commission. As that question hinges on whether the proposed activities at the facility constitute "transportation by rail carrier," this Opinion will first identify the nature of those activities, and then define the respective roles of the parties in developing and operating the facility. If the proposed facility is not within the exclusive jurisdiction of the federal Surface Transportation Board, then it would also fall within the Pinelands Commission's regulatory powers, wherein it must comply with the Comprehensive Management Plan ("CMP") of the Pinelands Commission.
After careful consideration, the Court holds first that the proposed facility will probably not involve "transportation by a rail carrier" and, thus, that Defendant will likely succeed on its claim that the Surface Transportation Board does not have exclusive jurisdiction over the regulation of the facility.*fn2 Additionally, the Court holds that the Pinelands Commission has satisfied the remaining elements warranting a preliminary injunction, including a showing of immediate irreparable harm in the absence of injunctive relief precluding further site preparation. For these reasons, the Court will grant a preliminary injunction in favor of Defendant New Jersey Pinelands Commission, and deny the request by Plaintiff J.P. Rail, Inc. Finally, for reasons explained below, the motion to dismiss by Third-Party Defendants will be denied.*fn3
The following constitute the Court's findings of fact and conclusions of law upon the cross-motions for preliminary injunctions, pursuant to Rule 52(a), Fed. R. Civ. P.
A. Pinelands National Reserve
The Pinelands National Reserve was established by Congress in 1978 out of recognition that the "approximately 1,000,000 acres of pine-oak forest, extensive surface and ground water resources of high quality, and a wide diversity of rare plant and animal species, provide significant ecological, natural, cultural, recreational, educational, agricultural, and public health benefits." National Parks and Recreation Act ("National Parks Act"), 16 U.S.C. § 471i et seq.; 16 U.S.C. § 471i(a)(1); see Gardner v. New Jersey Pinelands Commission, 125 N.J. 193 (1991) (describing unique ecological, economic, and cultural features of the New Jersey Pinelands National Reserve).
The National Parks Act, 16 U.S.C. § 471i(c), directed the Secretary of the Interior to request the State of New Jersey to develop a Comprehensive Management Plan ("CMP") for the Pinelands National Reserve. 16 U.S.C. § 471i(d); N.J.A.C. 7:50-1 et seq. The Act further directed the Secretary of the Interior to provide technical assistance to the State of New Jersey for the development of the CMP. 16 U.S.C. § 471i(d).
Pursuant to the National Parks Act, the New Jersey State Legislature enacted the Pinelands Protection Act, thereby designating the Pinelands Commission to be the regional planning and management entity contemplated by the National Parks Act. See N.J.S.A. 13:18A-8, -9; N.J.A.C. 7:50-1.11. The Pinelands Commission implements the CMP and regulates all activities within the Pinelands National Reserve. See N.J.S.A. 13:18A-6, -27, -29; N.J.A.C. 7:50-8.1. The CMP provides that those who wish to engage in "development" in the Pinelands National Reserve must first obtain approval from the appropriate local authority and the Pinelands Commission. N.J.S.A. 13:18A-15; N.J.A.C. 7:50-2.11. The Pinelands Commission is authorized to institute an action to prevent or restrain a violation of the Pinelands Protection Act and to prevent construction in violation of the Act. N.J.A.C. 7:50-8.1(a).
"In keeping with the paramount objective of both federal and state governments, i.e., protecting the Pinelands from overdevelopment and consequent ecological degradation, the plan for the Pinelands National Reserve calls for the full participation of federal, state, county, and municipal authorities." Gardner, 125 N.J. at 201.
Steve Waszen, Sr. purportedly acquired Lots 1 and 2 in Block 10802 in the Pinelands Village of Elwood, Mullica Township, Atlantic County ("Site"), located within the Pinelands National Reserve, from the Perona family by quitclaim deeds dated August 15, 2003 and October 21, 2003.*fn4 (Dillon Decl. Ex. B.) On December 16, 2003, a Municipal Consent Order was entered into between Atlantic County, the Township of Mullica and "Steven Waszen, [Sr.] t/a Magic Disposal," requiring Waszen to "forthwith proceed with a cleanup up" of the Site.*fn5 (Dillon Decl. Ex. G.) Both Waszen, Sr. and DeClement signed the Consent Order.*fn6 (Id.)
Pursuant to paragraph 4 of the Consent Order, Waszen, Sr. and Magic agreed not to bring any solid waste or recyclable materials onto the property. The Consent Order further provides that resumption of use or development of the Site would "be subject to compliance with and proceed in accordance with all [applicable laws] including but not limited to . . . New Jersey Pinelands Commission regulations . . . ."*fn7 (Martin Decl., Ex. 4, ¶ 1.) The order also states:
No additional solid waste or recyclable materials may be brought to the property for storage, processing or other purposes by any party. This prohibition shall include materials dumped on the ground and materials stored in roll off container from any other source or other property.
(Id. ¶ 7.) Finally, the consent order prohibits any activity at the Site, "except in connection with implementation of clean up operations," and provides that "[a]ny other uses or activity occurring at the site shall cease." (Id. ¶ 11.) This prohibition was duly filed with the Atlantic County Clerk and remains of record, as confirmed at the hearing in this case.*fn8
On January 19, 2005, Waszen, Sr. and Waszen, Jr. entered into two separate deed agreements purporting to transfer ownership of Lots 1 and 2 to Waszen, Jr. (Martin Decl. Ex. 14.) The transfer of each lot was made for one dollar. (Id.) Curiously, on December 30, 2004, before ownership of the property was ostensibly transferred to Waszen, Jr., a ground lease was entered into between Waszen, Jr. as landlord, and SRNJ as tenant.*fn9 (Dillon Decl. Ex. A.) The relevant terms of the ground lease are as follows:
* This lease shall become effective on December 31, 2004 and shall be for an initial period of two (2) consecutive 10 year terms with option to terminate after the first ten and then with five year renewal period options with five (5) five year renewal periods with the agreement terminating without further renewal after 45 years. The Lessee shall be deemed to have accepted and be liable for each consecutive yearly option if he/she does not give written notice to Lessor 60 days prior to the expiration of each term. (¶ 1.)
* Subject to Lessor's compliance with all the terms and provisions of this Lease, Lessor shall pay the following rent:
a. from the Lease Commencement Date throughout the initial period at the rate of $1.00 (one dollar) and other good and valuable considerations payable in advance for ten years on the date the lease signed and executed, Lease and any extensions thereto shall be effective each ear and in anniversary of the Lease Commencement Date.
b. the Lessor shall be responsible for the payment of Class II railroad taxes as assessed by the State of New Jersey and no other fees or expenses.*fn10 (¶ 2.)
* Landlord agrees that it will construct any buildings necessary to carry out the enterprise at its own expense and shall, if necessary, obtain the local approvals which may consist of appearing before local land use boards and or abide by those obligations pertaining to the rights and obligations of a railroad facility. (¶ 4.)
* Lessor shall keep the improvements on the Premises insured under Lessor's blanket insurance program, against loss or damage due to fire or windstorm and with what is commonly known as comprehensive coverage. . . . Lessee agrees to maintain in effect throughout the term of this Lease comprehensive general liability and property damage under its blanket insurance program, covering the Premises and the business to be conducted by Lessee thereon, in limits not less than $1,000,000 combined single limit for each occurrence. (¶ 11.)
* Lessee further agrees to indemnify, keep and hold Lessor harmless from and against liability for loss or damage, including attorney's fees and court costs with respect to injury to persons and damage to property on the Premises arising in connection with the operation of the Premises by Lessee effective as of the Lease Commencement Date and during the term of this Lease and any extension or option period thereof, except for loss or damage caused by Lessor, its employees, contractor, agents or persons otherwise affiliated with Lessor. (Id.)
* Nothing contained herein shall be deemed construed by the parties hereto, or by any third party, as creating the relationship of principal and agent, a partnership, or a joint venture between the parties hereto, it being understood and agreed that neither the provisions contained herein nor any acts of the parties hereto, shall be deemed to create any relationship between the parties other than the relationship of Lessor and Lessee. (¶ 32.)
In or about the beginning of 2003, David DeClement, on behalf of Magic Disposal, contacted SRNJ and recommended that a waste facility be set up at the Site for Magic to ship waste. (Martin Decl. Ex. 17, Collard Dep. Tr. at 37:14-38:13.) By letter dated May 11, 2005, SRNJ notified Mullica Township of its intention to construct a waste disposal facility ("Lica Facility" or "Facility") on the Site. SRNJ has identified its proposed waste disposal facility as a "transload facility." According to Plaintiff, "[a] transloading facility is a facility designed to enable the transfer of freight from trucks to trains and trains to trucks." (Pl. Br. at 2. n.1.) Plaintiff maintains that the Lica Facility will not handle liquid waste or hazardous waste. (Id. at 4.) Rather, SRNJ proposes to transload containers of municipal solid waste and dry goods to railcars bound for destinations in interstate commerce. More specifically, SRNJ asserts that it will handle materials such as lumber, finished goods, recyclable, and as well as municipal solid waste such as construction and demolition debris. (Id. at 8.)
As used by SRNJ, "municipal solid waste" ("MSW") is a generic term that includes materials of every kind that are neither liquid nor hazardous. According to SRNJ, there are two types of MSW, putrescible waste and non-putrescible waste. SRNJ asserts that it will only accept the former if it arrives to the Facility in airtight sealed containers. (Id. at 9.) SRNJ will then directly load the sealed container onto a flatcar or transfer it to another sealed container. SRNJ assures that at no time will putrescible waste be dumped on the tipping floor or be stored at the Facility. If, on the other hand, the material is non-putrescible, SRNJ will first place it on the tipping floor.*fn11
Next, SRNJ will remove the recyclables to be prepared for separate shipment in boxcars. Similarly, all metals will be removed prior to loading so as to prevent damage to the railcars. (Id. at 10.)
Finally, SRNJ maintains that the remainder of the waste will be loaded into the appropriate container for shipment. According to SRNJ, for each type of commodity handled at the Facility, SRNJ will utilize the appropriate railcar for transportation. For example, SRNJ maintains that for finished goods, boxcars will generally be used; lumber providers will use lumber flatcars; construction and demolition material will be shipped in tarped gondola cars; and MSW will be transported in airtight sealed containers which will then be placed on a flatcar.*fn12 (Id. at 9.) Once the cars arrive, the shipper will be instructed to bring the commodity to the Facility to be appropriately prepared for shipment.
Importantly, almost none of the waste will initially be transloaded in closed containers from truck to railroad car. Instead, as confirmed by Plaintiff's counsel at the hearing, the dominant portion of SRNJ's initial hauling contracts involve construction wastes and recyclables which will be dumped on the tipping ...