United States: Rail Blocked Crossing Statute Upheld, Departing From Overwhelming Precedent

Jameson Rice is an Associate in the Jacksonville office and in the Tampa office

Many states and municipalities have (or used to have) laws that limit the amount of time a railroad may block a traffic intersection. Time and again, courts have determined that these laws are preempted by either the Interstate Commerce Commission Termination Act (ICCTA), the Federal Railroad Safety Act (FRSA), or both. Every court considering ICCTA preemption has found the blocked crossing law was preempted, or has been overturned for failing to find ICCTA preemption.  See People v. Burlington N. Santa Fe R.R., 148 Cal. Rptr. 3d 243, 255 (Cal. App. 1st Dist. 2012); see also Eagle Marine Industries, Inc. v. Union P. R. Co., 845 N.E.2d 869, 872 (Ill. App. 5th Dist. 2006), rev'd, 882 N.E.2d 522 (Ill. 2008). Every court but one considering FRSA preemption has found the blocked crossing law was preempted. That one outlier court (an Ohio state appeals court) has not been followed even within Ohio; Ohio courts instead have followed a contrary Federal Sixth Circuit Court of Appeals decision that was decided two years later. See State v. Wheeling & Lake Erie Ry. Co., 743 N.E.2d 513, 513 (Ohio App. 9th Dist. 2000); see also CSX Transp. Inc. v. City of Plymouth, 283 F.3d 812 (6th Cir. 2002).  The issue appeared to be settled: state blocked-crossing statutes are not enforceable.

Norfolk Southern Railway Company (NS) challenged Indiana's blocked crossing statute in 2015 on the basis of ICCTA and FRSA preemption, and the state trial court predictably followed the overwhelming precedent and found that statute was preempted. The state nevertheless appealed, but a successful appeal seemed doubtful. The Indiana statute wasn't novel, and neither were the state's arguments. NS filed extensive briefing and the Association of American Railroads filed an amicus brief (the briefs and oral argument can be found here). Yet, on October 10, 2017, the Indiana Court of Appeals reversed the trial court and held that Indiana's blocked-crossing statute was not preempted.  State v. Norfolk S. Ry. Co., 02A03-1607-IF-1524, 2017 WL 4508476 (Ind. App. Oct. 10, 2017). 

The court made no attempt to distinguish the Indiana statute from other state statutes, or to challenge the reasoning of the other courts. It instead elected to ignore all of the myriad cases that reached the opposite conclusion by not citing or otherwise referring to any of them The court instead relied on a case that is not on point, as well as the discredited Ohio appellate court decision. 

To briefly explain federal preemption over blocked-crossing laws, as mentioned, there are two primary statutes: ICCTA and the FRSA.  ICCTA is an express preemption statute.  It states in relevant part that:

the jurisdiction of the [federal Surface Transportation] Board 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
. . .
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 under Federal or State law.

49 U.S.C. § 10501(b). The "ICCTA preempts all state laws that may reasonably be said to have the effect of managing or governing rail transportation." Ass'n of Am. Railroads v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1097 (9th Cir. 2010). A law is facially preempted when it directly conflicts with exclusive federal regulation of railroads. One category of facially preempted laws are "any form of state or local permitting or preclearance that, by its nature, could be used to deny a railroad the ability to conduct some part of its operations or to proceed with activities that the Board has authorized." State v. Norfolk S. Ry. Co., 2017 WL 4508476, at *4 (citing Emerson v. Kansas City S. Ry. Co., 503 F.3d 1126, 1130 (10th Cir. 2007) and Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 642 (2d Cir. 2005)).

How did the Court find that there was no ICCTA preemption?  It made two missteps:

(1) It relied on Fifth Circuit precedent that "routine crossing disputes . . .  are not typically preempted." New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 332 (5th Cir. 2008).  That case (and other similar cases) addresses a different issue: adding a simple crossing over a railroad track. In those routine crossing cases, if the crossing impacts the railroad at all, it is only during construction of the crossing. Railroad operations are not otherwise impacted because the trains continue to operate on their own schedule and vehicular traffic yields to the railroads. (A different result may obtain where a proposed crossing would present operational problems for the railroad or safety issues for the public. See, The City of Ozark, Ark. – Petition for Declaratory Order, STB Docket FD 36104, July 26, 2017.) Conversely, the statute at issue, which limits the amount of time that a train may block vehicular traffic, has a direct and substantial impact on railroad operations. In fact, if blocked-crossing statutes could be enforced against the railroads, then the crossing construction precedent would need to be reevaluated, because a crossing would create more than just a temporary impact on the railroad during construction, it would create an ongoing burden on railroad operations. 

(2) The Court stated that "[t]he ICCTA does not include language regarding regulation of a blocked crossing for traffic regulation purposes." State v. Norfolk S. Ry. Co., 2017 WL 4508476, at *5.  This is a red herring: it is the wrong analysis.  ICCTA is an express preemption statute, which encompasses all of railroad transportation. A specific reference to blocked crossings in the federal statute would only be relevant in a conflict preemption analysis. Under the Court's logic, the federal statute would need to list every conceivable situation in which a state law is preempted in order for preemption to apply. 

The FRSA, like ICCTA, is an express preemption statute.  Under the FRSA, "[t]he Secretary of Transportation, as necessary, shall prescribe regulations and issue orders for every area of railroad safety . . . ."  49 U.S.C. § 20103(a).  The law also states:

(a) National uniformity of regulation. – (1) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable.

(2) A state may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order –

(A) is necessary to eliminate or reduce an essentially local safety or security hazard;
(B) is not incompatible with a law, regulation, or order of the United States Government; and
(C) does not unreasonably burden interstate commerce.

49 U.S.C. § 20106. The U.S. Supreme Court held in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993) that it is not necessary for the federal regulation to be identical in order for preemption to apply, and every court but the one Ohio appellate court mentioned above (State v. Wheeling & Lake Erie Ry. Co., which was not followed even within Ohio), found that the state or local law was preempted. Undeterred, the Indiana Court of Appeals cited the lone case holding that the FRSA did not preempt a blocked crossing statute, but no other cases reaching the opposite conclusion. 

Perhaps the line of the decision that gives the most insight into the Court's thinking is the statement that "[w]ithout State action, railroads would be allowed to block major thoroughfares for an infinite amount of time because the federal regulation is silent." State v. Norfolk S. Ry. Co., 2017 WL 4508476, at *5. It may be the case that the Court did not like this result, and so in spite of the overwhelming precedent, it reached the conclusion it preferred. But this does not give license to contravene precedent. And, of course, railroads exist to move freight, not to let it stand in one place. There was no claim that the railroad set out to block the crossing for hours on end. Rather, it was a matter of railroad operations sometimes not meeting the Indiana statute's 10 minute limitation. 

Norfolk Southern petitioned for rehearing on November 9, 2017. If that is not successful, Norfolk Southern could attack the statute on remand to the trial court as preempted via conflict or field preemption, since the appellate court specifically referred to its opinion as "narrow," addressing only express preemption, not conflict or field preemption. Id. *7. Alternatively, Norfolk Southern may appeal to the Indiana Supreme Court. Wherever the case heads, the case law overwhelmingly supports preemption of Indiana's blocked crossing statute.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions