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.

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