United States: STB Finds Arkansas City's Effort To Create New At-Grade Rail Crossing Is Pre-empted

Paul R. Hitchcock is a Senior Policy Advisor in our Jacksonville office. William P Byrne is a Partner in our Jacksonville office.


  • The Surface Transportation Board (STB) has found that efforts by the city of Ozark, Ark., to force the reinstallation of a highway-rail at-grade crossing are pre-empted by federal law.
  • The dispute arose when the city sought to re-establish an at-grade crossing over four parallel railroad tracks owned by Union Pacific (UP).
  • This is an important decision, which will greatly assist in preserving the fluidity of the rail transportation network.

The Surface Transportation Board (STB) has found that efforts by the city of Ozark, Ark., to force the reinstallation of a highway-rail at-grade crossing are pre-empted by federal law.

The dispute arose when the city sought to re-establish an at-grade crossing over four parallel railroad tracks owned by Union Pacific (UP). The city wanted to develop 1.8 acres on the north shore of the Arkansas River, but the only way to reach the property by highway was to install four crossings over the four tracks.

The case had an interesting history before reaching the STB. There had been a crossing at this location until 2001, when UP removed it after consultation with and permission of the then-mayor. The city argued that this permission was legally insufficient and that UP's removal of the crossing 16 years earlier was illegal. The city challenged the UP's argument that "replacing" the crossing would adversely affect operations and presented argument that any effects would be only incidental. And, the city tried to distinguish precedent finding pre-emption, pointing out that UP's removal of the crossing had violated state law.

The case was removed to federal court, where the city was initially successful on the basis of the court's conclusion that "Union Pacific's lack of legal authority to close the [c]rossing is the controlling factor." On appeal, though, the U.S. Court of Appeals for the Eighth Circuit held that a crossing question of the kind presented is reviewed under an "as applied" analysis in which the sole focus under 49 USC Sec. 10501(b) is whether allowing the crossing by state law would "unreasonably interfere with rail operations as they are conducted today or are likely to be conducted in the future." The legality, vel non, of the removal of the crossing years ago was irrelevant to an "as applied" pre-emption analysis. The Eighth Circuit then suggested to the U.S. District Court for the Western District of Arkansas that it "would be appropriate for the district court to defer entry of a final judicial determination whether the City's claims are preempted if the City requested an opportunity to petition the STB for a declaratory order resolving the issue of its exclusive jurisdiction." Upon remand, the city did just that.

Before the STB, Union Pacific argued that a highway crossing at this location would unreasonably interfere with its operations and would create safety hazards for the public and UP's employees.

The four tracks include a mainline track handling 10 to 20 trains per day, a passing siding where trains heading in one direction could pull off the main track and let trains moving the other direction pass, and two "house tracks" used to set out cars. Reinstalling the crossing would prevent UP from fully utilizing the "house tracks." More importantly, by preventing train meets and passes, the proposed crossing would reduce line capacity on the subdivision by 44 percent to 118 percent. Further, the number of switching operations needed to set out cars would be increased.

UP described a number of safety issues that would be created. Pedestrians crossing the tracks would be at risk because of limited sight distances caused by both the geography and the presence of cars on the set-out tracks. A downgrade and sweeping curve approaching the location would create risk that approaching trains might find it necessary to initiate full emergency brake application on the curve. And, any increase in switching operations would create additional opportunities for injuries to the UP's employees.

The STB agreed with the Eighth Circuit that the proposed crossing would restrict UP's ability to conduct its current operations. The STB also held that the past presence of a crossing at this location was irrelevant to the "as applied" pre-emption analysis that examines the situation today. The agency explained that the city had conflated the "as applied" standard with the analysis used in a case of categorical pre-emption, where the local action would directly regulate the railroad or deny its ability to conduct operations. The STB found UP's "concrete" evidence of safety considerations persuasive. Concluding that the crossing would interfere with UP's "present and future" operations under an as applied pre-emption analysis, the STB found that state law remedies were pre-empted.

STB Board Member Deb Miller issued a concurring opinion in which she stated that she considered the prior actions of the rail carrier to be relevant. She cautioned railroads not to read the decision as giving them carte blanche to violate state and local laws and then look to pre-emption for protection.

As the trend toward urbanization continues and the footprint of the nation's cities continues to grow, there will be increased pressure to create new crossings of existing rail lines. Consequently, this is an important decision, which will greatly assist in preserving the fluidity of the rail transportation network.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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