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NORFOLK SOUTHERN RY CO. v. CITY OF ALEXANDRIA

Nos. 09-1566, 09-1608.

608 F.3d 150 (2010)

NORFOLK SOUTHERN RAILWAY COMPANY, Plaintiff-Appellee, v. CITY OF ALEXANDRIA, a municipal corporation organized under the laws of the Commonwealth of Virginia; Richard Baier, in his official capacity as Director of Transportation and Environmental Services for the City of Alexandria, Defendants-Appellants, v. RSI Leasing, Incorporated, Third Party Defendant-Appellee. Norfolk Southern Railway Company, Plaintiff-Appellant, v. City of Alexandria, a municipal corporation organized under the laws of the Commonwealth of Virginia; Richard Baier, in his official capacity as Director of Transportation and Environmental Services for the City of Alexandria, Defendants-Appellees, v. RSI Leasing, Incorporated, Third Party Defendant-Appellee.

United States Court of Appeals, Fourth Circuit.

Decided June 16, 2010.

Attorney(s) appearing for the Case

ARGUED: William Eric Pilsk, Kaplan Kirsch & Rockwell, LLP, Washington, D.C., for Appellants/Cross-Appellees. Gary Alvin Bryant, Willcox & Savage, PC, Norfolk, Virginia, for Appellees/Cross-Appellants.

ON BRIEF: Charles A. Spitulnik, Lisa Reynolds, Kaplan Kirsch & Rockwell, LLP, Washington, D.C.; James L. Banks, Christopher P. Spera, Office of the City Attorney, Alexandria, Virginia, for Appellants/Cross-Appellees.

GOODWIN wrote an opinion concurring in part and dissenting in part.

OPINION

KING, Circuit Judge:

These appeals concern whether three separate provisions of federal law serve to preempt an ordinance enacted by the City of Alexandria, Virginia (the "City"). The City's ordinance has been applied to Norfolk Southern Railway Company ("Norfolk Southern") through a series of haul permits. In its appeal, the City maintains that the district court erred in ruling that two federal statutes—the Interstate Commerce Commission...

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