Discussion

NCTD's defense is threefold. First, it asserts that under Section 10501 of the Interstate Commerce Commission Termination Act (ICCTA), the federal Surface Transportation Board (STB) has exclusive jurisdiction over the construction of passing tracks such as this one, and that STB's authority preempts the jurisdiction of the Commission in this instance. Second, the Commission should not assert jurisdiction in this case because these same parties have already litigated the issues raised in the City's complaint and the City's claims are therefore barred by the doctrine of res judicata. Third, in the event the Commission does not agree that the ICCTA preempts the Commission's jurisdiction over the Encinitas passing track project, the City's action should still be dismissed because the Commission does not have an independent basis upon which to enforce Section 125260.

As we explain below, since the complaint was filed, there have been significant developments elsewhere that bear directly on the merits of City's case. We address first NCTD's claims of exclusive STB jurisdiction and res judicata, and then the Commission's jurisdiction independent of the claim of federal preemption.

A. STB's Jurisdiction, and Res Judicata

As its first defense, NCTD argues that under the ICCTA, STB has exclusive jurisdiction over the construction and operation of rail lines that are part of the interstate rail network. Among other things, the ICCTA provides:

The jurisdiction of the [Surface Transportation] Board over . . . (2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or sidetracks, or facilities, even if the tracks are located, or intended to be located entirely in one state, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided in Federal or State law.³

NCTD goes on to cite a long line of cases upholding the broad language of 49 USC Section 10501. While it acknowledges that not all state and local laws are necessarily preempted, both the courts and STB have made clear that any exception to this rule applies only to laws that do not interfere with railroad operations. Further, both have made clear that state and local environmental and planning requirements do unduly interfere with railroad operations.

In August 2001, City filed an action with the San Diego County Superior Court seeking declaratory and injunctive relief preventing NCTD from building the passing track until it fulfilled state permitting requirements. On September 26, 2001, NCTD had the state court action removed to the United States District Court for the Southern District of California. On January 14, 2002, the District Court issued a decision finding that City's permitting process is preempted by 49 USC Section 10501(b), as broadened by the ICCTA, and dismissing the action.⁴ The District Court determined that NCTD comes within the ICCTA's definition of a rail carrier and is thus subject to STB jurisdiction. Accordingly, "Although state and local governments may retain police powers for the purpose of protecting public health and safety, the ICCTA prohibits any government action or regulation which forecloses or restricts the `railroad's ability to conduct its operation or otherwise unreasonably burden[s] interstate commerce.'"

NCTD argues that the District Court's determination was a judgment on the merits between the same parties and involving the same claims, and thus City's complaint before the Commission is barred by the doctrine of res judicata. City disputes that contention, but in light of the discussion below, we need not further pursue that aspect.

On October 11, 2001, NCTD filed a Petition for Declaratory Order with the STB, seeking to terminate the controversy over the applicability of 49 USC Section 10501(b) and STB's jurisdiction. In December 2001, STB opened Finance Docket No. 34111 to consider the matter. On August 19, 2002, STB granted NCTD's request for a declaratory order, agreeing with the District Court's determination that STB has exclusive jurisdiction and prohibiting City from requiring NCTD to obtain permits or pre-approvals prior to constructing the Encinitas passing track.

Section 248 provides, "Any provision of the Public Utilities Act that is in conflict with the railroad provisions of Part A of Subtitle 4 of Title 49 of the United States Code [i.e., the ICCTA] shall be inapplicable to railroad transportation to the extent of that conflict." City would have the Commission enjoin NCTD from any further implementation of the passing track until it has complied with the RTP and commenced the necessary environmental analysis. The District Court and STB have both made clear that any such action by either state or local authorities would impinge upon the federal regulation of interstate commerce under the ICCTA. Thus, the Commission is without jurisdiction to grant the relief City seeks.

B. The Commission and Public Utilities Code Section 125260

City has indicated that it does not agree that either the District Court's decision or STB's decision is applicable to its request in this proceeding. Its reply brief indicated that it had filed an appeal of the District Court's decision with the federal Court of Appeals. STB decisions are likewise appealable to the Court of Appeals, and City's intent is as yet unknown in that regard. City maintains that, these federal decisions notwithstanding, the Commission is charged with enforcing the Public Utilities Code and may require NCTD, a creation of the Legislature, to bring its activities into conformance with Section 125260 and the Regional Transportation Plan. Thus, we examine next the Commission's

jurisdiction to do precisely what the City would have us do: enforce Section 125260 against NCTD.

As City acknowledges, "The NCTD is not a private corporation or simply a `rail carrier.' Instead, the NCTD is a political subdivision of the State of California created by statute." While the Commission does have jurisdiction to regulate public utilities, common carriers, and railroads generally, it is well established that the Commission's jurisdiction does not extend to overseeing political subdivisions of the state absent specific legislation permitting it to do so:

Admittedly, the commission fulfills a vital and significant role in the scheme of government. In fact, it is the only public agency which is constitutionally constructed to protect the public form the consequences of monopoly in public service industries [citations omitted]. However, the primary function of the commission is to regulate private property dedicated to a public use and to exercise control over private companies engaged in public service [citations omitted]. Moreover, as a regulatory body of constitutional origin it has only such powers as it derives from the Constitution and the Legislature (Cal.Const, art XII, §23; Television Transmission v Public Util. Com., 47 Cal.2d 82, 301 P.2d 862; Northwestern Pac. R.R. Co. v Superior Ct., 34 Cal.2d 454, 211 P.2d 571). Thus, in the absence of specific legislation to the contrary, the commission has no jurisdiction to regulate public districts or municipalities (Los Angeles Met. Transit Authority v Public Utilities Com., 52 Cal.2d 655, 343 P.2d 913).⁵ [emphasis added]

There are numerous examples in the Public Utilities Code of the Legislature's having so empowered the Commission. The Commission is, for example, specifically directed under Section 309.7 "to enforce safety laws, rules, regulations, and orders, and to collect fines and penalties resulting from the violation of any safety rule or regulation" relating to the operations of railroads and public mass transit guideways. The Legislature through Section 99152 has likewise granted the Commission limited authority over public transit systems: "Any public transit guideway planned, acquired, or constructed, on or after January 1, 1979, is subject to regulations of the Public Utilities Commission relating to safety appliances and procedures." The Commission has safety and other responsibilities in connection with various of California's transit districts.⁶ However, nowhere in the Public Utilities Code or elsewhere is the Commission empowered to enforce the legislative mandate requiring NCTD to act in conformance with the Regional Transportation Plan. City acknowledges as much: "The City is unaware of any specific statute authorizing the PUC to specifically enforce Public Utilities Code § 125260."⁷ Absent such specific authority, we again conclude that the Commission lacks jurisdiction to grant the relief City seeks.