Opinion
Case No. CIV-20-714-J
2021-01-07
BNSF RAILWAY COMPANY, Plaintiff, v. CITY OF MOORE, OKLAHOMA, Defendant.
Adam C. Hall, John M. Thompson, Crowe & Dunlevy, Oklahoma City, OK, Deric J. McClellan, Northern District of Oklahoma, Malcolm E. Rosser, IV, Crowe & Dunlevy, Tulsa, OK, for Plaintiff. Derek K. Burch, Burch George & Germany, Oklahoma City, OK, for Defendant.
Adam C. Hall, John M. Thompson, Crowe & Dunlevy, Oklahoma City, OK, Deric J. McClellan, Northern District of Oklahoma, Malcolm E. Rosser, IV, Crowe & Dunlevy, Tulsa, OK, for Plaintiff.
Derek K. Burch, Burch George & Germany, Oklahoma City, OK, for Defendant.
ORDER
BERNARD M. JONES, UNITED STATES DISTRICT JUDGE
Plaintiff filed a Complaint seeking declaratory and injunctive relief in response to Defendant's intention to begin condemnation proceedings (Compl.) [Doc. No. 1]. Defendant filed a motion to dismiss (Def.'s Mot.) [Doc. No. 8] to which Plaintiff responded (Pl.'s Resp.) [Doc. No. 9]. Defendant filed a reply and the Court entered an Order granting Defendant's motion in part and denying it in part. [Doc. No. 13]. Thereafter, Plaintiff filed a motion for reconsideration, arguing that the Court had overlooked a pertinent argument related to Count IV. [Doc. No. 14]. Plaintiff more fully briefed the relevant issue, see id. , and Defendant responded. [Doc. No. 17]. The Court ultimately agreed it had misinterpreted Plaintiff's argument, granted the motion for reconsideration, and vacated the prior Order. [Doc. No. 19].
Having now reconsidered Count IV, and again for the reasons set forth below, Defendant's motion is DENIED in part and GRANTED in part.
For Counts I-III, and V, the Court has not altered its findings. Nevertheless, for clarity of record, the Court restates its full findings below.
I. Background
As alleged in the Complaint, Plaintiff is a railroad carrier engaged in interstate commerce. See Compl. at 1. Plaintiff has rail lines which cross State Highway 37, also known as "4th Street," in Moore, Oklahoma. Id. at 5. Defendant intends to construct an underpass below Plaintiff's rail lines. See id. To that end, Defendant seeks to, through condemnation proceedings, purchase portions of Plaintiff's right-of-way for purposes of constructing a pump station to redirect stormwater from the underpass. See id. at 6.
In March 2020, Defendant filed an application with the Oklahoma Corporation Commission (OCC) seeking to "assess 100% of the cost of the 4th Street Project" to Plaintiff. Id. at 5. Those proceedings are ongoing.
Plaintiff seeks declaratory and injunctive relief on grounds that: (Count I) the Interstate Commerce Commission Termination Act of 1995 (ICCTA) and (Count II) the Federal Railroad Safety Act (FRSA) preempt Defendant's condemnation attempts; (Count III) under Oklahoma law, Defendant cannot condemn Plaintiff's property – already devoted to public use – because it would materially impair it; (Count IV) Defendant lacks authority under Oklahoma law to alter a state highway without the Oklahoma Department of Transportation (ODOT)'s permission, which it does not have; and, (Count V) Defendant's condemnation would violate the Takings Clause pursuant to 42 U.S.C. § 1983. See id. at 8-17.
II. Standard of Review
Defendant seeks dismissal under Fed. R. Civ. P. 12(b)(6). See Def.'s Mot. at 13-14. "To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). When considering such motions, a court must distinguish between well-pled facts and conclusory allegations. See Archuleta v. Wagner , 523 F.3d 1278, 1283 (10th Cir. 2008). A court must also construe the allegations in the complaint in the light most favorable to the plaintiff. See Buckley Constr., Inc. v. Shawnee Civic and Cultural Dev. Auth. , 933 F.2d 853, 855 (10th Cir. 1991).
III. Analysis
For reasons discussed below, the Court DENIES Defendant's motion in part and GRANTS it in part.
A. Counts I & II
Generally, a municipality may exercise condemnation under Oklahoma law. See Okla. Stat. tit. 11, § 22-104 ; Okla. Stat. tit. 27, § 5. However, Plaintiff alleges the ICCTA and the FRSA preempt Defendant's condemnation authority in this instance. See Compl. at 8-12. Defendant disagrees and seeks dismissal. See Def.'s Mot. at 14-23. On these grounds, the Court DENIES Defendant's motion.
In Emerson v. Kansas City Southern Ry. Co. , 503 F.3d 1126 (10th Cir. 2007), the Tenth Circuit reiterated that "Congress has the power to pre-empt state law under Article VI of the Constitution," and "[f]ederal pre-emption of state law may be either express or implied." Id. at 1128-29. "Express pre-emption occurs when Congress ‘defines explicitly the extent to which its enactments pre-empt state law.’ " Id. at 1129 (citation omitted). Implied preemption, i.e., "implied conflict" preemption, "occurs when ‘it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ " Id. at 1130 (internal quotation marks and citations omitted).
It is Plaintiff's burden to prove preemption. See Cook v. Rockwell Int'l Corp. , 618 F.3d 1127, 1143 (10th Cir. 2010) (noting the party advocating for preemption bears the burden). However, as noted above, Defendant seeks dismissal under Fed. R. Civ. P. 12(b)(6). Therefore, the question before the Court is not whether either the ICCTA or FRSA preempt the state law in question, but whether Plaintiff has plausibly stated a valid claim for preemption under Rule 12(b)(6). See supra at 2-3.
1. The ICCTA
The ICCTA includes an express preemption clause stating "that ‘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 under Federal or State law.’ " Id. Emerson , 503 F.3d at 1129 (brackets omitted; citing 49 U.S.C. § 10501(b) ).
The Act defines "transportation" as:
(A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use; and
(B) services related to that movement, including receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, and interchange of passengers and property.
Id. (brackets omitted; citing 49 U.S.C. § 10102(9)(A)-(B) ).
Additionally, the ICCTA vests the Surface Transportation Board (STB) with exclusive jurisdiction over:
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(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.
Id. at 1130 (brackets omitted; citing 49 U.S.C. § 10501(b) ).
As the Eighth Circuit has noted,
The focus of the STB's exclusive jurisdiction is interstate rail transportation, at present and in the future. ICCTA preemption does not depend upon the source of a state law claim. The claim is preempted if the requested remedy will, in the words of the STB's governing test, "impede rail operations or pose undue safety risks."
City of Ozark, Arkansas v. Union Pac. R.R. Co. , 843 F.3d 1167, 1172 (8th Cir. 2016) (citations omitted).
Plaintiff alleges that under ICCTA's plain language, and looking to the STB's exclusive jurisdiction, Defendant's attempt to condemn its right-of-way property under Oklahoma law is expressly preempted. See Compl. at 8-10. Defendant disagrees, arguing generally that "not ‘all state action related to’ railroads is preempted," and more specifically, that there is no "blanket rule that such condemnation proceedings are [expressly] preempted." Def.'s Mot. at 16 (citations omitted). However, taking Plaintiff's allegations as true, Defendant's condemnation of the right-of-way property, and subsequent placement of a pumping station, will "have a significant impact on [Plaintiff's] ability to expand future rail operations" and would "materially, substantially, and negatively impair [Plaintiff's] operations and use of its right-of-way." Compl. at 7-8. Accordingly, the Court finds Plaintiff has stated a valid claim that the ICCTA expressly preempts state law in this instance. See Union Pac. R. Co. v. Chicago Transit Auth. , 647 F.3d 675, 681 (7th Cir. 2011) (holding that if railroad had not been using the property the city wished to condemn, ICCTA preemption would be "straightforward" because "[e]ven if the property was not being used and Union Pacific had no immediate plans to use the property, a taking of this property would still prevent Union Pacific from using it for railroad transportation in the future."); Soo Line R. Co. v. City of St. Paul , 827 F. Supp. 2d 1017, 1022 (D. Minn. 2010) (finding "[b]ecause the City's proposed condemnation seeking a permanent easement would be an act seeking to control [the railroad's] property, it is a form of regulation" the ICCTA expressly preempts); Wisconsin Cent. Ltd. v. City of Marshfield , 160 F. Supp. 2d 1009, 1013 (W.D. Wis. 2000) ("The Court holds that condemnation is regulation. In using state law to condemn the track[,] [the city] is exercising control – the most extreme type of control – [of] rail transportation as it is defined in section 10102(9). Characterizing condemnation as relocation does not change this conclusion.").
In Wisconsin Cent. Ltd. , the court further found an implied conflict, holding:
Wisconsin's condemnation statute, when applied by municipalities to property constituting rail transportation, frustrates Congress' purpose and policy of deregulating the railroads and divesting states of their remaining authority over the railroads. This application of state law would mire the railroads in the very type of regulation from which Congress sought to free them. Under defendant's formulation every municipality in Wisconsin would have the ability to condemn or "relocate" any railroad property deemed to implicate public health or safety. Giving effect to the condemnation authority of municipalities over railroad property conflicts with Congress' purpose in enacting the ICCTA.
Wisconsin Cent. Ltd. , 160 F. Supp. 2d at 1015.
2. The FRSA
The Court finds similarly on Plaintiff's FRSA claim.
The FRSA requires rail carriers to comply with various safety regulations. Relevant here, those regulations require:
Each drainage or other water carrying facility under or immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to accommodate expected water flow for the area concerned.
According to Plaintiff, Defendant's plan to condemn Plaintiff's property to locate a pump station will likely: (1) "redirect a substantial amount of stormwater ... onto [Plaintiff's] right-of-way, including areas used for active interstate rail operations;" (2) "triple" the acreage currently draining stormwater into Plaintiff's drainage area; and, (3) create drainage discharge at "nearly five times higher" than the current rate. Compl. at 6-7. Thus, Plaintiff argues, Defendant's condemnation and pump station placement will make it impossible for Plaintiff to comply with the FRSA's drainage safety requirements.
Seeking dismissal, Defendant claims Plaintiff has alleged only a conclusory statement that "the purpose and effect of the order sought by [Defendant] will substantially impact and impair [Plaintiff's] ability to comply with Section 213.33." Def.'s Mot. at 22 (bracket and ellipsis omitted). Alternatively, Defendant argues that a state law related to railroad safety is permitted if it is necessary to eliminate an essentially local hazard and Defendant is attempting to do just that by "decreas[ing] safety issues caused by the delays at the existing crossing ..." Id. at 22-23.
Defendant's first argument ignores Plaintiff's specific allegations about stormwater drainage and is rejected outright. See supra at 6; see also Compl. at 6-7. And the second argument is not properly before the Court on a Fed. R. Civ. P. 12(b)(6) motion. That is, the question is not whether Defendant will ultimately prove that its condemnation proceedings are necessary to eliminate a local hazard but whether Plaintiff has stated a valid claim that the FRSA preempts the condemnation under the current plans. Applying the Rule 12(b)(6) standard, and assuming Plaintiff's allegations regarding increased stormwater drainage are true, the Court finds it has stated a valid claim for preemption under the FRSA. See, e.g., Ass'n of Am. Railroads v. Hatfield , 435 F. Supp. 3d 769, 781 (E.D. Ky. 2020) (finding the FRSA preempted "anti-blocking" statutes because railroad could not comply with both state statute and the FRSA).
Defendant relies on its allegations in the attached OCC petition to prove its plan will eliminate a local hazard. See Def.'s Mot. at 23. The Court can arguably consider the exhibit because Plaintiff referenced it in the Complaint. See Compl. at 5; see also Woodie v. Berkshire Hathaway Homestate Ins. Co. , 806 F. App'x 658, 665 (10th Cir. 2020) ("Rule 12(d) is not implicated when a court ‘considers documents attached to or referenced in the complaint if they are central to the plaintiff's claim and the parties do not dispute the documents’ authenticity." (brackets and citation omitted)). However, that petition only states what Defendant intends to prove in the OCC proceedings. See Def.'s Mot., Ex. 1.
B. Count III
In Count III, Plaintiff asks the Court to declare that Defendant cannot condemn its right of way property under state law. Specifically, Plaintiff argues it is "also a condemning authority," using its property for "public use," and thus Defendant must show its condemnation is not "inconsistent" with the way Plaintiff is already using the property. Compl. at 12-13. Defendant seeks dismissal on two grounds. First, it asks this Court to decline its discretionary jurisdiction over Plaintiff's request for declaratory judgment, and second, it argues that its use of the property is not "wholly inconsistent" with Plaintiff's current use. Def.'s Mot. at 23-25. The Court reviews the arguments in reverse order.
1. Failure to State a Claim for Relief
According to Defendant, Plaintiff fails to state a valid claim that Oklahoma law would prevent it from condemning Plaintiff's property.
In briefing, the parties rely on Oklahoma City v. Local Fed. Sav. & Loan Ass'n of Oklahoma City , 192 Okla. 188, 134 P.2d 565, 575 (1943). There the question was whether the City of Oklahoma City could condemn a railroad's dormant property to create a public park. The Oklahoma Supreme Court answered in the negative, holding that "[p]roperty presently devoted to a public use cannot generally be taken for another and wholly different public use pursuant to the power of eminent domain." Oklahoma City , 134 P.2d at 575. Citing the American Jurisprudence, the court explained:
While it is settled that the Legislature may constitutionally authorize the taking of property devoted to a public use for a different public use, where land has been once appropriated to an important use, the power of eminent domain cannot be invoked for the purpose of taking it for a second public use which is wholly inconsistent with the former and which would entirely supersede and destroy the use to which the land is already devoted, or which would materially and substantially interfere with such use, unless the right is expressly conferred by statute or arises therefrom by necessary inference.
Id. (citation omitted).
Defendant first argues that the relevant language in Oklahoma City does not apply because it was dicta. See Def.'s Mot. at 25. The Court disagrees. "Dicta" are " ‘statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case at hand.’ " In re Tuttle , 291 F.3d 1238, 1242 (10th Cir. 2002). Admittedly, one dissenting judge believed the discussion "wholly irrelevant to a determination of th[e] case." Oklahoma City , 134 P.2d at 565 (dissent). However, another judge later found the language dispositive. See Sooner State Water, Inc. v. Town of Allen , 396 P.2d 654, 659 (Okla. 1964) (dissent) ("In Oklahoma City ..., we said that property devoted to a public use cannot generally be taken for a different public use, but recognized that there are exceptions to the rule where the second taking is necessary to the public welfare."). Moreover, the relevant language continues to appear in American Jurisprudence publications. See 26 Am. Jur. 2d Eminent Domain § 108. Finally, the Oklahoma Supreme Court has explained that " ‘the law of a case is contained in the syllabus,’ " Crestwood Vineyard Church, Inc. v. City of Oklahoma City , 457 P.3d 278, 281 (Okla. Civ. App. 2019), and the relevant language here appeared in the syllabus in Oklahoma City . See Oklahoma City , 134 P.2d at 567 ("The statutes of this State do not delegate to municipalities the power of eminent domain to acquire for park purposes the premises occupied by a railroad company and used for its tracks and station grounds."). Accordingly, the Court rejects Defendant's motion to dismiss on this ground.
Defendant next alleges that even if the language in Oklahoma City applies, there is an exception where the " ‘second use is necessary to the public welfare.’ " Def.'s Mot. at 25 (citing Oklahoma City , 134 P.2d at 575 ). But as above, see supra at 7 & n. 3, Defendant relies on its own allegations that the condemnation is necessary for the public welfare and ignores the Rule 12(b)(6) standard. Applying that standard, the Court assumes it is true that Defendant's condemnation will result in the taking of Plaintiff's public-use right-of-way and will materially and forever alter it by constructing a pump station. With those allegations, and applying the holding in Oklahoma City , the Court finds Plaintiff has stated a valid claim for relief on Count III.
2. Discretionary Jurisdiction
Defendant also asks this Court to decline to exercise its discretionary jurisdiction over Count III. See Def.'s Mot. at 23-25.
The Declaratory Judgment Act states that a court "may declare the rights and other legal relations of any interested party seeking such declaration." 28 U.S.C. § 2201(a). " ‘Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants’ and is a ‘remedial arrow in the district court's quiver’ establishing ‘an opportunity, rather than a duty, to grant a new form of relief.’ " Goodwill Indus. of Central Okla. v. Philadelphia Indemnity Insur. Co. , 499 F.Supp.3d 1093, 1095-1096 (W.D. Okla. 2020) (citations omitted).
The Court is required to consider several factors when deciding whether to exercise its discretionary judgment. Those include:
(1) whether a declaratory action would settle the controversy; (2) whether it would serve a useful purpose in clarifying the legal relations at issue; (3) whether the declaratory remedy is being used merely for the purpose of "procedural fencing" or "to provide an arena for a race to res judicata"; (4) whether use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and (5) whether there is an alternative remedy which is better or more effective.
State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 983 (10th Cir. 1994) (citation omitted).
The Court finds these factors weigh in Plaintiff's favor. First, a declaratory judgment on Count III would settle the question of whether the holding in Oklahoma City prevents Defendant from condemning Plaintiff's right-of-way. Second, the Court finds it would serve a useful purpose in clarifying that legal issue. Third, the Court finds no evidence of procedural fencing or a "race to res judicata." Supra at 10. That is, while Plaintiff did file this action one day before Defendant was to file a condemnation action, see Compl. at 8, the two actions would not have been parallel. See State Farm Fire & Cas. Co. v. Telecomm Consultants, Inc. , No. CIV-17-0640-HE, 2017 WL 11556315, at *4 (W.D. Okla. Oct. 19, 2017) (finding that where state court action would not have been parallel, plaintiff did not "race to res judicata" in filing declaratory action suit first). Fourth, the action pending in the OCC would not address Count III, see infra at 12-13 (discussing the narrow issues before the OCC), and " ‘the absence of a pending parallel state court proceeding makes it less likely that by choosing to exercise jurisdiction over the action, this court will cause friction with the state court.’ " Goodwill Indus. of Central Okla. , 499 F.Supp.3d at 1097-1098 (citation omitted). Fifth and finally, because again there is no pending state proceeding which would address Count III, there is not a better or more effective alternative. See id. at 499 F.Supp.3d at 1098.
As Plaintiff discusses, Defendant could conceivably gain access to Plaintiff's property through state condemnation proceedings long before Plaintiff's ICCTA, FRSA, and other state law claims could be decided. See Pl.'s Resp. at 21-22. That is, Plaintiff would not have been able to raise its objections and demanded a jury trial until after Defendant had filed the condemnation action and the appointed commissioners had convened, examined the property, and prepared and filed their report. See State ex rel. Dep't of Transp. v. Mehta , 180 P.3d 1214, 1219 (Okla. Civ. App. 2008) ("Disputes regarding the propriety or legality of the taking, including the right to condemn, the necessity of the taking, the reasonableness of the taking, the scope or the nature of the taking, can only be brought to issue by filing an exception to the commissioners' report in accordance with § 1203(e)".). Moreover, assuming Defendant paid the price set forth in the commissioner's report, it would have immediate access to the right-of-way pending a jury trial. See Okla. Stat. tit. 66, § 53(C) ; see also The Landowner's Bill of Rights, https://domino.oag.ok.gov/oagweb.nsf/0/cb5855b85b956c0b86257aad007efc3d/$FILE/Oklahoma% 20Landowners% 20Bill% 20of% 20Rights.pdf ("After the commissioners' report is filed, the condemning entity may take possession of the condemned property, even if either party seeks judicial review of the award."). Indeed, Defendant could proceed with construction pending an objection and subsequent jury trial, though at its own financial risk. See Pub. Serv. Co. of Oklahoma v. B. Willis, C.P.A., Inc. , 155 P.3d 845, 850 (Okla. Civ. App. 2006) ("[A] condemnor who takes possession of condemned property proceeds at its own risk until a final non-appealable judgment confirming its right to condemn the property has been entered. The statutory system in this State permits the condemnor to take that risk if it so chooses.").
Accordingly, the Court declines to dismiss Count III on this ground. See id. at 499 F.Supp.3d at 1096-1098 (discussing the factors and, finding they weighed in plaintiff's favor, exercising jurisdiction under the Declaratory Judgment Act).
C. Count IV
In Count IV, Plaintiff again challenges Defendant's ability to condemn its property under Oklahoma law, arguing that Defendant lacks authority to alter State Highway 37 without ODOT's permission. See Compl. at 13-15. On this claim, Defendant seeks dismissal on three grounds. First, it asks this Court to dismiss Count IV under the Colorado River doctrine based on the ongoing OCC proceedings. See Def.'s Mot. at 27-29. Second, it reiterates its argument that the Court should decline to exercise its discretionary jurisdiction. See id. at 29. Third, and finally, Defendant argues Plaintiff fails to state a valid claim on the merits. See id. at 30. The Court addresses Defendant's first and third arguments.
1. Abstention Under the Colorado River Doctrine
"The Colorado River doctrine applies to ‘situations involving the contemporaneous exercise of concurrent jurisdictions ... by state and federal courts.’ " Fox v. Maulding , 16 F.3d 1079, 1080 (10th Cir. 1994) (quoting Colorado River Water Conservation Dist. v. United States , 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) ). In particular, the "doctrine permits a federal court to dismiss or stay a federal action in deference to pending parallel state court proceedings, based on ‘considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ " Id. (citation, internal brackets, and quotation marks omitted).
In its prior Order, the Court agreed with Defendant and found it should abstain under the Colorado River doctrine based on the ongoing OCC proceedings. See [Doc. No. 13, at 12-13]. However, the Court had misinterpreted Plaintiff's argument and thus failed to consider its contention that the OCC proceedings are not "state court" proceedings as contemplated in Colorado River. [Doc. No. 19]. Reviewing that issue now, the Court finds in Plaintiff's favor.
Plaintiff argues the OCC is not operating as a state court because the proceedings (in this case) are legislative, not judicial, in nature. [Doc. No. 14]. Defendant disagrees, claiming the proceedings are in fact judicial. [Doc. No. 17]. However, the Court need not resolve that dispute because it finds, on reconsideration, that Defendant failed to carry its burden regardless of whether the OCC – a state regulatory body – is acting in a judicial or legislative function.
Defendant seeks abstention and thus has the burden of establishing that Colorado River is applicable here. See Coats v. J.D.B. of New Mexico, Inc. , No. CV 09-541 JCH/WPL, 2010 WL 11500514, at *2 n.1 (D.N.M. May 26, 2010) ("The fact that Colorado River involved a dismissal rather than a stay does not change Defendant's burden to demonstrate exceptional circumstances."). However, Defendant cites no authority – and this Court independently finds none–applying the Colorado River doctrine when the state proceedings are occurring within a regulatory body rather than a state district or appellate court. Indeed, a sister court recently discussed the same lack of authority. See, e.g., Celotto v. Ryan , No. 16CV1038V, 2020 WL 1678053, at *2 (W.D.N.Y. Mar. 13, 2020) ("This Court has not found instances in which Colorado River abstention has been applied for state agency proceedings."), adopted , 2020 WL 1677368 (W.D.N.Y. Apr. 6, 2020). And "any doubt should be resolved in favor of exercising federal jurisdiction." Fox , 16 F.3d at 1082. Accordingly, on reconsideration, the Court DENIES Defendant's motion to dismiss based on the Colorado River doctrine.
2. Failure to State a Claim on the Merits
Having reversed its decision to dismiss under Colorado River , the Court now turns to Defendant's argument that Plaintiff has failed to state a valid claim for relief.
In its Complaint, Plaintiff alleges Defendant lacks authority to alter State Highway 37 without ODOT's permission, citing various Oklahoma statutes. See Compl. at 13-15. In sum, Plaintiff argues that Oklahoma law makes ODOT the custodian of the State Highway System, see id. at 14 (citing Okla. Stat. tit. 69, § 101(e) ), and dictates that the construction and maintenance of the State Highway System shall be "under the general supervision and control of the [ODOT]." Id. (citing Okla. Stat. tit. 69, § 304 ). In turn, according to Plaintiff, the statutes granting municipalities certain rights "do not include a right to improve or alter the highways." Id. (relying on Okla. Stat. tit. 47, § 15-102 ). Id. Finally, Plaintiff points to statutes which allow the ODOT and a municipality to enter into agreements with each other for highway improvement. See id. at 15 (citing Okla. Stat. tit. 69, § 304 and Okla. Stat. tit. 11, § 36-112 ). Stringing these statutes together, Plaintiff concludes that Defendant is statutorily required to have ODOT's permission before it alters 4th Street/State Highway 37. See id.
Defendant disagrees, relying on Ambrister v. City of Norman , 344 P.2d 665 (Okla. 1959). See Def.'s Mot. at 30. There, the City of Norman began improvements to Main St., which is also State Highway 9, and plaintiffs attempted to enjoin the action. See Ambrister , 344 P.2d at 666. In relevant part, plaintiffs argued that the City of Norman had "no jurisdiction to create a paving district on a part of the State Highway System without agreement with the State Highway Commission." Id. at 666-667. Analyzing the relevant Oklahoma statutes, the court disagreed holding:
We are of the opinion that the sections referred to by plaintiffs confer authority on the State Highway Commission to make expenditures to improve streets within a city where they are a part of the Highway System, and also to participate with cities in the improvement of such streets. We do not interpret those sections to mean that a city is prohibited from providing for such improvements without the cooperation or participation by the State Highway Commission.
Id. at 668. The court further reasoned that:
While [Oklahoma statute] does not specifically provide for cities to improve streets which are also considered a part of the State Highway System, it does not prohibit them from so doing. [Moreover], when we take into consideration the different statutes passed by the Legislature concerning the improvement of streets and highways, we can come to no other conclusion than that it was the legislative intent that traffic arteries serving a dual purpose as both a street within a city and a portion of highway system may be improved by either the city independently, the Highway Commission independently, or by both jointly.
Id.
Plaintiff does not address Ambrister in its Response. See Pl.'s Resp. at 25-28. Instead, it directs the Court to a statute granting the ODOT authority to condemn land for highway use and suggests this precludes Defendant from doing the same. See id. at 25-26 (citing Okla. Stat. tit. 69, § 1203(a) ). But just as the statutes discussed in Ambrister , § 1203(a) grants the ODOT the authority to condemn property but it does not specifically prohibit a municipality doing the same. See § 1203(a). Indeed, the Oklahoma Legislature granted municipalities the authority to "condemn lands in like manner as railroad companies, for highways, rights-of-way, building sites, cemeteries, public parks and other public purposes." Okla. Stat. tit. 27, § 5. Plaintiff acknowledges this statute but argues – in seemingly direct conflict to the plain language and with no relevant supporting authority – that "this general grant cannot be construed to give Moore authority to condemn property for a state highway." Pl.'s Resp. at 25.
Plaintiff directs the Court to the language granting municipalities the power to condemn "in like manner as railroad companies" and points out that the ODOT's authority has no such constriction. Pl.'s Resp. at 27 (comparing Okla. Stat. tit. 27, § 5 with Okla. Stat. tit. 69, § 1203(a) ). But even assuming the Oklahoma Legislature intended to grant the ODOT different or broader powers, Plaintiff provides no authority for interpreting this difference as meaning "municipalities do not possess the right to condemn property to construct or maintain a state highway through their grant of condemnation authority in section 5 of title 27." Pl.'s Resp. at 27.
Plaintiff cites City of Pryor Creek v. Pub. Serv. Co. of Oklahoma , 536 P.2d 343 (Okla. 1975), see Pl.'s Resp. at 25, but the Court finds it unpersuasive. There, a city had attempted to condemn a public utility with plans to use the property for the same purpose. See City of Pryor Creek , 536 P.2d at 345. The court held: "The power of a municipality to take property of a public service corporation for public utility purposes must rest upon legislative authority either granted expressly or by necessary implication. General authority to exercise the power of eminent domain is insufficient." Id. at 347.
Accordingly, reviewing all the relevant state statutes and applying Ambrister , the Court finds Plaintiff has failed to state a valid claim that Defendant must have ODOT's permission before altering State Highway 37 and DISMISSES Count IV without prejudice.
D. Count V
Finally, in Count V, Plaintiff relies on 42 U.S.C. § 1983 to allege Defendant's condemnation will violate the Takings Clause. See Compl. at 16. Defendant believes this claim is conclusory and otherwise fails to state a valid claim for relief, see Def.'s Mot. at 31-32, and Plaintiff explains that it is reliant on the previously alleged allegations in Counts I-IV. See Pl.'s Resp. at 30-31. In other words, Plaintiff argues that because Defendant (allegedly) lacks "the police power" to condemn its property under the ICCTA, FSRA, and state law, its attempt violates the Takings Clause. Id.
The Court finds Plaintiff blurs the lines between police power and the Takings Clause. That is, the state has police power to regulate private property for the protection of public health, safety, and welfare; alternatively, it has the power of eminent domain, which permits the taking of property with just compensation. See Lech v. Jackson , No. 16-CV-01956-PAB-MJW, 2018 WL 10215862, at *6 (D. Colo. Jan. 8, 2018) ("cases applying both state and federal takings clauses have historically distinguished between eminent domain authority, which permits the taking of private property for public use, and the police power, which allows states to regulate private property for the protection of public health, safety, and welfare"), aff'd , 791 F. App'x 711 (10th Cir. 2019), cert. denied , No. 19-1123, ––– U.S. ––––, 141 S.Ct. 160, 207 L.Ed.2d 1097 (2020). Accepting Plaintiff's allegations as true, Defendant is not attempting to regulate its property. Instead, Defendant is attempting to take Plaintiff's property, which would implicate the Takings Clause if it were attempting to do so without compensation. See id. ("The Takings Clause is concerned with the government's power of eminent domain."). However, Plaintiff has not alleged an attempted taking without compensation. See Compl. at 5-6 & Ex. 1. Accordingly, the Court agrees that Plaintiff has failed to state a valid claim for relief under the Takings Clause and DISMISSES Count V without prejudice.
IV. Conclusion
Based on the foregoing, Defendant's motion to dismiss [Doc. No. 8] is DENIED in part and GRANTED in part. Specifically, Defendant's motion to dismiss Plaintiff's Counts I-III is DENIED. Defendant's motion to dismiss Plaintiff's Counts IV and V is GRANTED and those claims are DISMISSED without prejudice.
IT IS SO ORDERED this 7th day of January, 2021.