                                                                      2020 WI 61

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:               2017AP2525


COMPLETE TITLE:         Town Of Delafield,
                                  Plaintiff-Appellant,
                             v.
                        Central Transport Kriewaldt,
                                  Defendant-Respondent-Petitioner.

                            REVIEW OF DECISION OF THE COURT OF APPEALS
                            Reported at 388 Wis. 2d 179,932 N.W.2d 423
                                PDC No:2019 WI App 35 - Published

OPINION FILED:          June 26, 2020
SUBMITTED ON BRIEFS:    March 27, 2020
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Waukesha
   JUDGE:               Michael J. Aprahamian

JUSTICES:
HAGEDORN, J., delivered          the majority opinion of the Court, in
which ROGGENSACK, C.J.,          ANN WALSH BRADLEY, ZIEGLER, and DALLETT,
JJ., joined. KELLY, J.,          filed a concurring opinion, in which
REBECCA GRASSL BRADLEY,          J., joined.
NOT PARTICIPATING:



ATTORNEYS:


       For the defendant-respondent-petitioner, there were briefs
filed by Pamela M. Schmidt, Michael K. Roberts, and Scopelitis,
Garvin, Light, Hanson & Feary, P.C., Milwaukee.


       For the plaintiff-appellant, there was a brief filed by
Kimberly      M.       Kershek   and   Law   Office   of   Kimberly    Kershek,
Delafield.
                                                                     2020 WI 61


                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.    2017AP2525
(L.C. No.   2017CV859)

STATE OF WISCONSIN                         :            IN SUPREME COURT

Town of Delafield,

            Plaintiff-Appellant,
                                                                  FILED
      v.
                                                             JUN 26, 2020
Central Transport Kriewaldt,
                                                                Sheila T. Reiff
            Defendant-Respondent-Petitioner.                 Clerk of Supreme Court




HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and DALLET,
JJ., joined.   KELLY, J., filed a concurring opinion, in which
REBECCA GRASSL BRADLEY, J., joined.




      REVIEW of a decision of the Court of Appeals.               Affirmed and

cause remanded.



      ¶1    BRIAN HAGEDORN, J.        When spring finally arrives in

Wisconsin, and roadways begin to thaw from the long winter, many

municipalities      impose   weight   limitations       on    certain       roads

especially vulnerable to deterioration during this time.                       The

Town of Delafield did just that in March 2016.                   However, the
federal Surface Transport and Assistance Act (STAA), along with
                                                                            No.     2017AP2525



related federal regulations, limits how states may restrict road

access      between      interstate      highways           and   certain    destinations.

This    case     arose    when    Central         Transport       Kriewaldt       received     a

citation for operating a tractor-trailer in violation of the

Town's seasonal weight limitation authorized by its ordinance.

Central Transport contested the citation on the grounds that the

limitation was preempted, and therefore disallowed, by the STAA.

       ¶2      We   conclude      that       the        STAA's    reach     in     this     case

mandates only reasonable access.                       The Town's limitation did not

need to be grounded solely in safety considerations, as Central

Transport maintains, so long as reasonable access was provided.

The     record      in   this    case        reflects        that    a    seasonal        weight

limitation is a normal restriction transport companies would be

aware of, that adequate notice of the restriction was provided,

and that a permit to travel the road was readily available.                                  Put

together, these facts show reasonable access was provided, and

the Town's seasonal weight limitation was not preempted by the

STAA.


                                 I.    LEGAL PRINCIPLES

       ¶3      In order to understand Central Transport's arguments,

we need to lay some groundwork regarding preemption generally,

followed by an examination of what the STAA and related federal

regulations         command.          Once    we        establish    what        federal    law

requires,      we    compare      that       to       the   Town's   implementation          and

enforcement of its ordinance here.


                                                  2
                                                                                     No.        2017AP2525



     ¶4       Preemption presents a question of law we review de

novo.     Partenfelder v. Rhode, 2014 WI 80, ¶25, 356 Wis. 2d 492,

850 N.W.2d 896.            We conduct this analysis accepting the circuit

court's      factual       findings         unless          they      are    clearly       erroneous.

Wis. Stat. § 805.17(2) (2017-18).1



                                A.    Preemption Generally

     ¶5       The Supremacy Clause of the United States Constitution

provides:      "This Constitution, and the Laws of the United States

which    shall      be    made       in    Pursuance            thereof . . . shall              be    the

supreme      Law    of     the       Land."           U.S.        Const.      art.     VI,       cl.    2.

Therefore,         "state       law       that     conflicts           with     federal          law   is

'without effect'"; it is preempted.                               Cipollone v. Liggett Grp.,

Inc., 505 U.S. 504, 516 (1992) (quoted source omitted).

     ¶6       Preemption, however, is disfavored "in the absence of

persuasive       reasons——either             that          the     nature     of     the     regulated

subject matter permits no other conclusion, or that the Congress

has unmistakably so ordained."                        Chi. & N.W. Transp. Co. v. Kalo
Brick    &   Tile        Co.,    450       U.S. 311,            317   (1981)       (quoted        source

omitted).        This presumption against preemption is particularly

strong    when      dealing       with       the      historic         police      powers        of    the

state.       Altria       Grp.,       Inc.       v.       Good,    555      U.S. 70,       77    (2008).

Unless it is the "clear and manifest purpose of Congress," we

assume    these      traditional            areas          of     state     regulation          are    not


     1 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version.

                                                      3
                                                                         No.     2017AP2525



superseded by federal law.                  Id.        Laws purporting to preempt

state police power regulations are therefore given a "narrow

reading."    Cipollone, 505 U.S. at 518.

      ¶7    The   preemptive          effect      of   any     given   federal     law   is

guided by Congress's purpose.                    Altria Grp., Inc., 555 U.S. at

76.   And that purpose is discerned through the text, aims, and

structure of the federal enactment.                       Id.     Sometimes Congress

sets forth its preemptive purpose in the text of a law itself

(express    preemption).             Id.       Preemptive       intent     may   also    be

implied when the federal legislation occupies the legislative

field (field preemption) or results in an actual conflict with

state law (conflict preemption).                 Id. at 76-77.

      ¶8    Central         Transport      argues        that     express      preemption

applies here.          And in fact, § 31114(a) of the STAA expressly

provides:         "A        State    may    not        enact    or     enforce     a     law

denying . . . reasonable              access      between"       certain       roads     and

destinations.          49    U.S.C.      § 31114(a)      (2012)      (emphasis    added).

This is an express preemption clause.                        But even when Congress
expressly preempts state law, "it does not immediately end the

inquiry    because      the    question      of    the    substance      and     scope    of

Congress'   displacement            of   state    law    still    remains."        Altria

Grp., Inc., 555 U.S. at 76.                The relevant question here is what

exactly this "reasonable access" prohibition means and what it

applies to.       As discussed more fully below, Central Transport

argues that any restriction on access must be based on safety

considerations, and that the Town's seasonal weight limitation


                                             4
                                                                                No.    2017AP2525



is expressly preempted because protecting the roads during the

spring thaw is not a safety-based regulation.

       ¶9        Central Transport argues in the alternative that the

STAA       and    related         regulations       indirectly       preempt      the     Town's

enforcement            of    a     seasonal        weight      limitation       because      they

actually          conflict.          That     is,       even    if     a    seasonal      weight

limitation is not expressly preempted, the Town's implementation

and    enforcement            of     that     limitation        runs       contrary     to     the

reasonable         access         federal    law       demands.      Conflict         preemption

occurs "when compliance with both the federal and state laws is

a physical impossibility or when a state law is a barrier to the

accomplishment              and    execution       of    Congress['s]        objectives        and

purposes."             Hazelton v. State Pers. Comm'n, 178 Wis. 2d 776,

787, 505 N.W.2d 793 (Ct. App. 1993).



             B.    The STAA and Accompanying Federal Regulations

       ¶10       The    portion       of     the    STAA    that     requires         states   to

provide reasonable access to commercial motor vehicles is found
in 49 U.S.C. § 31114.                Subsection (a) provides that a state "may

not enact or enforce a law denying to a commercial motor vehicle

subject      to     this      subchapter       or      subchapter      I   of   this     chapter

reasonable         access         between"    the       interstate     highway        system    as

described in § 31114(a)(1)2 and certain locations described in

       The specifically covered interstate highways are defined
       2

as: "the Dwight D. Eisenhower System of Interstate and Defense
Highways (except a segment exempted under section 31111(f) or
31113(e) of this title) and other qualifying Federal-aid Primary
System highways designated by the Secretary of Transportation."
49 U.S.C. § 31114(a)(1).
                                                   5
                                                       No.   2017AP2525



§ 31114(a)(2) (and discussed further below).      § 31114(a).     This

requires some unpacking.

      ¶11    Section 31114(a) sets the general legal standard by

prohibiting states from denying what the law calls "reasonable

access."      The prohibition applies "to a commercial motor vehicle

subject to this subchapter or subchapter I of this chapter."

Id.       And subchapter I defines a "commercial motor vehicle" in

part as "a self-propelled or towed vehicle used on the highways

in commerce principally to transport passengers or cargo, if the

vehicle——(A) has a gross vehicle weight rating or gross vehicle

weight of at least 10,001 pounds, whichever is greater."            49

U.S.C. § 31101(1).3      The tractor-trailer in this case fits this

definition; it was used in commerce to transport cargo and met

the weight requirement.



      3   The full definition of a "commercial motor vehicle" is:

      a self-propelled or towed vehicle used on the highways
      in commerce principally to transport passengers or
      cargo, if the vehicle——

      (A) has a gross vehicle weight rating or gross vehicle
      weight of at least 10,001 pounds, whichever is
      greater;

      (B) is designed to transport more than 10 passengers
      including the driver; or

      (C) is used in transporting material found by the
      Secretary of Transportation to be hazardous under
      section 5103 of this title and transported in a
      quantity   requiring   placarding   under   regulations
      prescribed by the Secretary under section 5103.

49 U.S.C. § 31101(1).

                                   6
                                                                       No.    2017AP2525



       ¶12       Section 31114(a)(2) details the potential destinations

from       the    highway   for    which    states    must   maintain        reasonable

access:

       terminals, facilities for food, fuel, repairs, and
       rest, and points of loading and unloading for
       household   goods   carriers,  motor   carriers    of
       passengers,    any   towaway   trailer    transporter
       combination (as defined in section 31111(a)), or any
       truck tractor-semitrailer combination in which the
       semitrailer has a length of not more than 28.5 feet
       and that generally operates as part of a vehicle
       combination described in section 31111(c) of this
       title.
49 U.S.C. § 31114(a)(2).                Although its grammatical clarity will

not    win       any   awards,    the   sentence     structure   and    punctuation4

suggest three separate categories of destinations:

           terminals;

           facilities for food, fuel, repairs, and rest; and

           points of loading and unloading for four specific
            types of carriers:

                 o household goods carriers,

                 o motor carriers of passengers,

                 o any towaway trailer transporter combination (as
                   defined in § 31111(a)), or

                 o any truck tractor-semitrailer combination in
                   which the semitrailer has a length of not more
                   than 28.5 feet and that generally operates as



       See Flug v. LIRC, 2017 WI 72, ¶32, 376 Wis. 2d 571, 898
       4

N.W.2d 91 (relying on the "rules of grammar" to interpret a
statute); State v. Holcomb, 2016 WI App 70, ¶¶11-12, 371
Wis. 2d 647, 886 N.W.2d 100 (explaining statutory structure and
punctuation are important in statutory interpretation).

                                            7
                                                                              No.    2017AP2525


                  part of a          vehicle        combination        described      in
                  § 31111(c).
      ¶13    This reading is confirmed by the federal regulation

tied to this provision, which stands as a near word-for-word

copy of the statutory language.                           The regulation begins, "No

State may enact or enforce any law denying reasonable access to

vehicles     with      dimensions      authorized          by    the   STAA    between     the

[national        highway      network]       and    terminals      and    facilities       for

food, fuel, repairs, and rest."                      23 C.F.R. § 658.19(a) (2018).

The   conjunction            "and"    separates           and    therefore      categorizes

terminals        on    the   one     hand,     and    facilities        for    food,    fuel,

repairs, and rest on the other hand.5                      Notably, a period follows,

and a new sentence begins:

      In addition, no State may enact or enforce any law
      denying   reasonable  access   between  the   [national
      highway network] and points of loading and unloading
      to household goods carriers, motor carriers of
      passengers,    and   any   truck    tractor-semitrailer
      combination in which the semitrailer has a length not
      to exceed 28 feet (28.5 feet where allowed pursuant to
      § 658.13(b)(5) of this part) and which generally
      operates as part of a vehicle combination described in
      §§ 658.13(b)(5) and 658.15(a) of this part.
Id.       This    confirms      that     the       last    category     of    destinations,

including        its   specific      application          to    certain      truck   tractor-

semitrailer combinations, is separate and apart from the other

categories of destinations:                  terminals and facilities for food,

fuel, repairs, and rest.

      5See State v. Arberry, 2018 WI 7, ¶19, 379 Wis. 2d 254, 905
N.W.2d 832 (explaining "[w]ords are to be given the meaning that
proper grammar and usage would assign them" (quoted source
omitted)).

                                               8
                                                                   No.     2017AP2525



    ¶14      As   it    did   before      the    court    of   appeals,     Central

Transport contends that its destination was a terminal.                           In

response, the Town inverts the language of 49 U.S.C. § 31114 and

argues that the four types of carriers enumerated to carry goods

to "points of loading and unloading" are also the only carriers

covered      by   the   statute    when       traveling   to     "terminals"     and

"facilities for food, fuel, repairs, and rest."                     As explained

above, this is incorrect as a matter of statutory construction.

The Town develops no further argument to directly contest that

Central Transport's attempted destination was a terminal.                        The

Town took the same approach below, leading the court of appeals

to assume without deciding Central Transport's tractor-trailer

was traveling to a terminal.               See Town of Delafield v. Cent.

Transp. Kriewaldt, 2019 WI App 35, ¶5 n.2, 388 Wis. 2d 179, 932

N.W.2d 423.       Without the benefit of a contested argument on this

point, we too assume without deciding the attempted destination

was a terminal and therefore covered by the STAA.

    ¶15      The destination distinction is also important in light
of Central Transport's arguments based on 49 U.S.C. § 31114(b),

which   is    denominated     an   "exception"       to    the    STAA's    general

reasonable access requirement under § 31114(a).                  It provides:

    Exception.——This section does not prevent a State or
    local    government     from   imposing    reasonable
    restrictions, based on safety considerations, on a
    truck tractor-semitrailer combination in which the
    semitrailer has a length of not more than 28.5 feet
    and that generally operates as part of a vehicle
    combination described in section 31111(c) of this
    title.


                                          9
                                                                            No.    2017AP2525



§ 31114(b).            By its plain language, this exception only applies

to   a       certain     type    of   vehicle,       "a    truck    tractor-semitrailer

combination in which the semitrailer has a length of not more

than 28.5 feet and that generally operates as part of a vehicle

combination described in section 31111(c) of this title."                                Id.

That language exactly mirrors one of the types of carriers under

§ 31114(a)(2) that may not be denied access to points of loading

or unloading.6            In the context of an already announced general

reasonable access requirement, this exception appears to give

states the authority to impose additional reasonable, safety-

based restrictions on vehicles meeting this specific profile.

         ¶16         Central Transport has a different take.                 It asks this

court to read the STAA's reasonable access requirement narrowly

to only permit restrictions based on safety considerations.                               In

other words, rather than a general reasonable access requirement

that         seems    apparent   from     the    text     of   49   U.S.C.    § 31114(a),

Central          Transport       posits     that          § 31114(b)        requires     all

restrictions on access to be based on safety, and safety alone.
It asks us to rule in its favor in part on the grounds that the

seasonal         weight    limitation      authorized          by   state    law   and   the




       And "absent textual or structural clues to the contrary" a
         6

particular word or phrase used more than once in the same act is
understood "to carry the same meaning each time." State ex rel.
DNR v. Wis. Court of Appeals, Dist. IV, 2018 WI 25, ¶30, 380
Wis. 2d 354, 909 N.W.2d 114.

                                                10
                                                                   No.    2017AP2525



Town's    ordinance   was   not       a   safety-based      restriction        and   is

therefore expressly preempted by and in conflict with the STAA.7

      ¶17     This   argument     does      not    hold   water   under    a    plain

reading of the text.        Nothing in 49 U.S.C. § 31114(b) suggests

all   local    restrictions      on       access    to    statutorily     protected

destinations must be based on safety considerations.                           Rather

§ 31114(b)      plainly         authorizes          additional      safety-based


      7For purposes of our examination, the                    Town's     ordinance
adopts Wis. Stat. § 348.17(1), which provides:

      No person, whether operating under a permit or
      otherwise, shall operate a vehicle in violation of
      special weight limitations imposed by state or local
      authorities on particular highways, highway structures
      or portions of highways when signs have been erected
      as required by [Wis. Stat. §] 349.16(2) giving notice
      of such weight limitations, except when the vehicle is
      being operated under a permit expressly authorizing
      such weight limitations to be exceeded or is being
      operated as authorized under sub. 4.

The corresponding Town of Delafield, Wis. Ordinance § 7.01(1)
provides:

      STATUTORY    REGULATIONS.     Except   as    otherwise
      specifically provided in this chapter, all provisions
      of Chs. 340 to 348, Wis. Stats., describing and
      defining regulations with respect to vehicles and
      traffic for which the penalty is a forfeiture only,
      including penalties to be imposed and procedures for
      prosecution, are hereby adopted and by reference made
      a part of this chapter as if fully set forth herein.
      Any act required to be performed or prohibited by any
      statute incorporated herein by reference is required
      or   prohibited   by   this chapter.     Any   further
      amendments, revisions or modifications of statutes
      incorporated herein are intended to be made part of
      this chapter in order to secure uniform statewide
      regulation of traffic on the highways, streets and
      alleys.

                                          11
                                                                        No.     2017AP2525



restrictions on certain types of vehicles.                     If Congress intended

to do what Central Transport suggests, it would have placed the

safety-based language in § 31114(a), not created an exception in

a separate subsection.              The primary statutory standard for all

covered vehicles and destinations is reasonable access.

       ¶18     The First Circuit Court of Appeals held likewise in

affirming a district court's conclusion that a zoning ordinance

limiting nighttime access to and from a local trucking terminal

was    not     preempted.       N.H.     Motor      Transp.     Ass'n     v.    Town      of

Plaistow, 67 F.3d 326 (1st Cir. 1995).                      The argument there, as

here,    was    primarily      that    the     restriction      was     not    allowable

because it was not based on safety.                 Id. at 329.

       ¶19     Looking to the statute as a whole, the First Circuit

observed that the reasonable access mandate extends far and wide

to     many    local       roads.      Id. at        330.       Disallowing          local

restrictions other than those based on safety "miles away from

any     interstate     or     national       network    highway"      would      not      be

consistent with the apparent goals of the federal law.                                  Id.
Instead,       as    the     court     explained,       communities           have     many

legitimate      interests      outside       of    safety——assuring       quiet      in    a

hospital zone, for example.              Id.       "It is difficult to conceive

that Congress meant to exclude such a concern from the calculus

used to determine whether a restriction infringes on 'reasonable

access' to the federal highway system."                 Id.

       ¶20     The court further pointed to the text itself, along

with     the    statutory      history,       as    contrary    to    a   safety-only
reading, explaining:           "the original 1982 Surface Act contained
                                             12
                                                                         No.   2017AP2525



the reasonable access language with no exception provision; so

nothing in 1982 suggested that state access restrictions were

limited      to    those    based   on   safety."          Id.     The    safety-based

exception, added in 1984, is not worded in such a way and does

not appear calculated to impose far more dramatic restrictions

on local regulation.           Id.; Tandem Truck Safety Act of 1984, Pub.

L. No. 98-554, § 106 (codified as amended at 49 U.S.C. § 2312

(1988)).8         In short, "[s]afety is obviously a paramount reason

for limiting access; but, in our view, it is not the only reason

permitted by Congress."              N.H. Motor Transp. Ass'n, 67 F.3d at

331.

       ¶21       The      Seventh    Circuit        has      echoed        this     same

understanding.            Under 49 U.S.C. § 31114, "states are still free

to exercise their police powers over state highways and local

roads, so long as these regulations do not impede 'reasonable

access'      for       commercial   motor   vehicles       traveling      between    the

Interstate and places such as terminals."                          Aux Sable Liquid

Prods. v. Murphy, 526 F.3d 1028, 1036 (7th Cir. 2008).                               The
Seventh Circuit explicitly rejected the notion that permissible

state or local restrictions must be based on safety, agreeing

with       the    First    Circuit's     decision     in     New    Hampshire     Motor




      This section was later renumbered from 49 U.S.C. § 2312 to
       8

49 U.S.C. § 31114.  See Act of July 5, 1994, Pub. L. No. 103-
272.

                                            13
                                                             No.    2017AP2525



Transport Ass'n.9     Id. at 1036 n.4.       The proper interpretation of

"§ 31114(a) is that states may exercise their police powers for

any   number    of   reasons,   so    long    as    reasonable     access   is

provided."     Id.

      ¶22   The statutory text and context, federal regulations,

and federal circuit court caselaw reject a limitation on local

restrictions based solely on safety concerns.10            The traditional

power of state and local governments to regulate travel over

local roads remains so long as reasonable access is not denied.

Central     Transport's    argument       that     the   Town's     ordinance

authorizing seasonal weight limitations is expressly preempted

based on its safety-focused reading of the STAA is incorrect.11

      9A federal regulation further limits imposing restrictions
within one mile from the national highway network to "specific
safety reasons." 23 C.F.R. § 658.19(d). This constraint is not
applicable in this case as the Town's seasonal weight limitation
was implemented more than one mile away from the interstate.
See Aux Sable Liquid Prods. v. Murphy, 526 F.3d 1028, 1036 n.4
(7th Cir. 2008).

       Only two federal circuit courts have addressed this
      10

question.   See Aux Sable Liquid Prods., 526 F.3d at 1036 n.4;
N.H. Motor Transp. Ass'n v. Town of Plaistow, 67 F.3d 326, 331
(1st Cir. 1995).     Prior to these decisions, several federal
district courts concluded differently. See A.B.F. Freight Sys.,
Inc. v. Suthard, 681 F. Supp. 334, 345 (E.D. Va. 1988); N.Y.
State Motor Truck Ass'n Inc. v. City of New York, 654 F.
Supp. 1521, 1539 (S.D.N.Y. 1987); Consol. Freightways Corp. of
Del. v. Larson, 647 F. Supp. 1479, 1492 (M.D. Pa. 1986),
reversed on other grounds, 827 F.2d 916 (3d Cir. 1987).

       We therefore need not determine whether an express
      11

limitation placed on a "State," such as the one found in 49
U.S.C. § 31114(a), extends to local governments such as the
Town.   See also Aux Sable Liquid Prods., 526 F.3d at 1034 n.3
(raising the same question, but determining deciding it was
unnecessary).

                                     14
                                                                             No.    2017AP2525



Any    conflict    preemption            analysis         on   these    grounds     likewise

fails.       The specific conflict preemption question remaining in

light of the facts of this case is whether Central Transport was

denied reasonable access to its destination.



        II.     CENTRAL TRANSPORT WAS AFFORDED REASONABLE ACCESS

       ¶23    As we have explained, the preemption question under 49

U.S.C. § 31114, and the specific challenge brought by Central

Transport, is fact-specific.                  Although states are not permitted

to    "define    the    term        however       they     see   fit,"      the    broad   and

undefined phrase "reasonable access" reflects "a recognition on

Congress's part that the manner and degree of access to and from

the Interstate necessary to protect Congress's overarching goal

of    uniformity       for        commercial        motor      vehicles     utilizing      the

Interstate will vary across the country."                            See Aux Sable Liquid

Prods., 526 F.3d at 1036.                   "Our task is 'to determine whether,

under the circumstances of this particular case, [the Town's

ordinance]      stands       as     an     obstacle       to   the     accomplishment       and
execution of the full purposes and objectives of Congress.'"

MITE Corp. v. Dixon, 633 F.2d 486, 491 (7th Cir. 1980) (quoted

source omitted).             "This inquiry requires us to consider the

relationship       between          state     and     federal        laws    as    they     are

interpreted and applied, not merely as they are written."                                   Id.

In    that    spirit,        we     turn     to     the     facts     precipitating        this

litigation, and the Town's implementation of its seasonal weight

limitation.


                                               15
                                                                         No.        2017AP2525



       ¶24     On Monday, March 7, 2016, a Waukesha County deputy

sheriff       cited        Central    Transport       for    violating      the       Town's

seasonal weight limitation when one of its drivers operating a

tractor-trailer was on his way to deliver art supplies.                                After

the Lake County Municipal Court assessed a forfeiture in the

amount of $1,532.50, Central Transport appealed to the circuit

court.        The circuit court conducted a bench trial and granted

Central Transport's motion to dismiss on preemption grounds.12

The court of appeals reversed, concluding the Town's limitation

afforded reasonable access and was not preempted.                        Cent. Transp.

Kriewaldt, 388 Wis. 2d 179, ¶6.                    We granted Central Transport's

petition for review.

       ¶25     While the circuit court made few factual findings, the

relevant record is based on the testimony of the deputy sheriff

who    issued        the    citation    and    the    Town's    highway        department

superintendent.               This     testimony       was     unrebutted;           Central

Transport offered no witnesses or evidence at the trial.                                  The

record reflects the following.
       ¶26     In 2016, the Town's seasonal weight limitation went

into        effect     when     the     superintendent        believed,         based      on

conditions on the ground during the spring thaw, that excess

weight       left    certain    roads    particularly        vulnerable        to    damage.

The limitation prohibited vehicles weighing over six tons from

traveling       on    certain    Town    roads.        The   record    is      clear     that


       The Honorable Michael
       12                                     J.     Aprahamian,      Waukesha        County
Circuit Court, presided.

                                              16
                                                                       No.    2017AP2525



Central Transport's offending tractor-trailer weighed more than

six   tons    and    traveled     on     roads   where      the   weight     limitation

applied.13        The limitation was imposed on Monday, March 7, and

remained in effect until Friday, March 11.14                      The Town provided

notice of the limitation through free-standing road signs posted

on Friday, March 4.           It was also the Town's practice to post the

seasonal weight limitation on its website and in a local paper.

      ¶27     Despite this one-week weight limitation, the Town's

roads      were   not   off    limits.         The   Town    offered   permits     that

allowed     overweight        vehicles    to    drive   on   otherwise       restricted

roads.      A permit could be obtained by calling the Town and going

into the superintendent's office.                The superintendent would then

issue a temporary permit along with a route the driver needed to

take to minimize travel on restricted roads.                      The superintendent

testified that, to his knowledge, he never denied a request for

a permit in the fifteen years he served in his role.                           He also

explained that many companies would call the Town to inquire if

the seasonal weight limitation was in effect.                          The Waukesha

       The superintendent and the deputy sheriff who issued the
      13

citation offered conflicting testimony with respect to whether
the weight limitation was in effect on the specific intersection
where the tractor-trailer was found.       Regardless, no party
disputes that the tractor-trailer at some point traveled on a
road with the noticed weight limitation in effect.

       The Town had no independent records regarding when the
      14

2016 limitation was posted or the period it was in effect; the
records were lost in moving to a new office.       However, the
superintendent based his testimony on when the City of Pewaukee
posted its seasonal weight limitation because the Town and City
coordinated   the  implementation  of   their  seasonal   weight
limitations.

                                           17
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County Sheriff's Office, according to testimony from the deputy

sheriff     who   issued    the   citation,        also   received     phone      calls

inquiring if any seasonal weight limitations were in effect in

the county.       While the posted signs did not say anything about

the   permitting     process,15        the    website     included      information

regarding how to obtain a permit to travel on weight-limited

roads and the phone number for the superintendent.

      ¶28    We   read     this   record      to   reflect     that   at    the    time

Central     Transport       received     its       citation,     seasonal      weight

limitations were normal and known for those making commercial

deliveries during that time of year in Wisconsin.                      Calls to the

highway department or sheriff's office to determine the nature

and effective date of any limitations were likewise commonplace.

The record also indicates that Central Transport's truck could

have obtained a permit to reach its destination, and if past is

prologue, likely would have received one if so requested.16




       The posted signs provided:
      15                             "TEMPORARY BY ORDER OF THE
TOWN OF DELAFIELD WEIGHT LIMIT 6 TONS."

       Central
      16         Transport   contends   that  the  potential   of
patchwork seasonal weight limitations ranging in time, duration,
and scale presents too much of a burden for commercial trucking
outfits, especially those, like Central Transport, that do not
travel regularly in the area.         However, Central Transport
presented no evidence at trial to substantiate those arguments.
Our decision here must be made in light of and specific to the
facts presented at trial. Our decision is not a review of the
Town's seasonal weight limitation generally, nor is it an
opinion regarding seasonal weight limitations that might be
imposed by other state and local governments.     We review only
the Town's application under this record and in this instance.

                                         18
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      ¶29       Taken together, we conclude the specific facts of this

case demonstrate that Central Transport had reasonable access to

its destination.            Central Transport's driver could have checked

the   website          or    called       ahead     to     determine        whether       any

restrictions       were     in    effect.         Or,    upon     seeing    the    seasonal

weight limitation was posted, the driver could have contacted

the Town, driven to the office, and obtained a permit that would

have allowed the tractor-trailer to lawfully traverse necessary

roads.      The weight limitation was also based on a reasonably

tailored and well-founded police power consideration——damage to

roads that were especially vulnerable during the spring thaw.

      ¶30       While such a system did not provide Central Transport

unfettered       access      to   its     delivery       point,     it     also    did    not

prohibit all access.              Cf. Aux Sable Liquid Prods., 526 F.3d at

1037 (holding that a weight restriction prohibiting all access

to a road was not reasonable access); N.H. Motor Transp. Ass'n,

67 F.3d at 329, 331 (concluding that a limitation of access at

night,     in    the   interest      in    curbing       noise,    odor,    and    dust     in
residential       areas,     granted       reasonable       access).         The    weight-

limited roads were, plainly put, reasonably accessible through a

readily     available       permit      process.17        Central     Transport       had   a



      17Central Transport argues a scheme where permits are
always granted would have no purpose and is not reasonable. But
a   weight   limitation  would   surely   discourage  and   deter
unnecessary driving on subject roads.         The permit system
represented in the record before us would also give a Town-
prescribed route for drivers to take that would minimize road
damage while still allowing drivers to reach their destination.

                                             19
                                                                           No.       2017AP2525



reasonable means of getting from the highway to its destination,

the main concern of the STAA.                  In light of the presumption that

the    state    retains        its    police    powers,     and    that     this      federal

restriction        should        be     read        narrowly,      we      conclude        the

implementation and enforcement of the Town's ordinance, which

Central Transport admits it violated, does not conflict with and

therefore       was     not     preempted      by     the   STAA    and        its    related

regulations.



                                     III.    CONCLUSION

       ¶31     Central        Transport's      tractor-trailer          had      reasonable

access from the highway to its intended destination when it was

cited for violating the Town's seasonal weight limitations on

certain Town roads as authorized by the Town's ordinance.                                  The

facts   of     this     case    demonstrate          Central    Transport        could    have

lawfully made its delivery by obtaining a permit, which was

readily available.             Therefore, the Town's implementation of its

weight-limit ordinance in 2016 was not preempted by the STAA,
and the citation was permissibly issued to Central Transport.

This    cause      is    remanded       to     the    circuit      court       for    further

proceedings consistent with this opinion.

       By    the   Court.—The         decision       of   the   court     of     appeals    is

affirmed and the cause is remanded to the circuit court.




                                               20
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    ¶32        DANIEL KELLY, J.             (concurring).                A truck driver for

Central Transport Kriewaldt ("Central Transport") was delivering

goods    to    a     customer     at    a     residential           address      when     he    was

ticketed       for      violating       the     Town      of        Delafield's          seasonal

permitting system.              Central Transport says Delafield may not

have such a system because it interferes with its "reasonable

access"       between     an    interstate         freeway       and       a    "terminal"       in

violation          of    49      U.S.C.        § 31114         (2012)           (the      Surface

Transportation Assistance Act ("STAA")).                             The court's opinion

promised      it     would     determine       whether        the    seasonal          permitting

system is consistent with the STAA, but its analysis stopped

well short of its goal.                So although I concur with the court's

judgment, I have a different reason for doing so.

    ¶33        The goal the court set for itself was not an easy one.

In fact, unlocking the meaning of "reasonable access" is a bit

of a paradox, which was succinctly described in Aux Sable Liquid

Prod. v. Murphy, 526 F.3d 1028 (7th Cir. 2008).                                       There, the

court    recognized       that    Congress         had    made       a    decision       "not    to
define 'reasonable access' more specifically."                                   Id. at 1036.

But this, it said, was not an invitation for states "to define

the term however they see fit" because "[i]f states were truly

left to define this term on their own, the express preemption

language        in      § 31114(a)          would        be     rendered             effectively

meaningless, since states would be able to define 'reasonable

access' so as to allow state and local authorities to severely

impede    commercial          motor    vehicles'       access        to    the       Interstate."
Id. at 1036, 1035.              And that would destroy the uniformity the

                                               1
                                                                          No.    2017AP2525.dk


STAA was created to achieve.                   That's one side of the paradox.

Here's the other:

       [T]his broad language can be viewed as reflecting a
       recognition on Congress's part that the manner and
       degree of access to and from the Interstate necessary
       to protect Congress's overarching goal of uniformity
       for commercial motor vehicles utilizing the Interstate
       will vary across the country depending on factors such
       as whether the Interstate is cutting across rural or
       metro areas, traffic density on the road, and other
       considerations.
Id. at 1036.          So, at least according to Aux Sable Liquid Prod.,

the    STAA    requires       "uniformity          for    commercial      motor        vehicles

utilizing       the     Interstate"          (meaning       states     may       not    define

"reasonable      access"       for     themselves),        but   the      uniformity       will

"vary across the country."                    Id.        I'm not saying that circle

can't be squared, but finding the edges requires work that the

majority opinion simply didn't do.

       ¶34     I suppose the easiest response to a paradox is to

ignore it, and that seems to have been our choice today.                                   The

court     says        Delafield's           seasonal       permitting        process        was

reasonable,           but     did      so      without       discussing,           or      even

acknowledging,         the    uniformity       mandate      that     is    the    motivating

rationale for the STAA's existence.                       Instead, we discussed the

benefits of the permitting system and                        made some case-specific

observations      such       as     that    "seasonal       weight     limitations         were

normal and known for those making commercial deliveries during

that    time     of    year       in   Wisconsin[]";        that     permits       could     be

obtained on a 24/7 basis; and that a permit has never been
denied.        Majority op., ¶28.               And the court's conclusion was

explicitly case-specific:                   "[T]he specific facts of this case
                                               2
                                                                  No.   2017AP2525.dk


demonstrate that Central Transport had reasonable access to its

destination."       Id., ¶29.

      ¶35     If we had been given explicit authority to develop our

own, state-specific definition of "reasonable access," I don't

know how it would differ from what we accomplished today.                     Every

consideration       used    to   assess   whether      the    permitting     system

interfered with "reasonable access" comprised nothing but our

own   sense    of   what    is   reasonable.          We   made    no   effort    to

demonstrate how this would fit into the Congressionally-mandated

"uniform standards for commercial motor vehicles,"1 or even what

the points of reference for such an analysis would be.                      What we

are left with, therefore, is the Wisconsin Supreme Court's own

sense of what "reasonable access" entails.                   That may or may not

also be consistent with the uniformity required by the STAA, but

nothing in our opinion explains why it might be.                   Therefore, the

court didn't finish the analysis, and so I cannot join it.

      ¶36     I reach the same conclusion as the court, however, for

a more straightforward reason.                Central Transport had recourse
to the STAA for the purpose of striking down the ordinance that

was the source of authority for Delafield's citation.                        As the

proponent      of    this    proposition,        it    bore     the     burden    of

establishing that the STAA preempted that ordinance.                    See, e.g.,

Sausen v. Town of Black Creek Bd. of Review, 2014 WI 9, ¶19, 352

Wis. 2d 576, 843 N.W.2d 39 (quoting Loeb v. Bd. of Regents, 29


      1Aux Sable Liquid Prod. v. Murphy, 526 F.3d 1028, 1036 (7th
Cir. 2008).



                                          3
                                                                          No.    2017AP2525.dk


Wis. 2d 159,          164,      138   N.W.2d 227    (1965))     ("[A]      party       seeking

judicial process to advance his position carries the burden of

proof[.]"); see also Upper Lakes Shipping, Ltd. v. Seafarers' I.

Union, 22 Wis. 2d 7, 17, 125 N.W.2d 324 (1963).

       ¶37    The first step in such an undertaking is establishing

that    the     route      it     was   driving    was    covered     by        the    federal

statutes.        The STAA is applicable to travel between certain

interstate highways (of which Interstate 94 is one) and

       terminals, facilities for food, fuel, repairs, and
       rest, and points of loading and unloading for
       household   goods   carriers,  motor   carriers    of
       passengers,    any   towaway   trailer    transporter
       combination (as defined in section 31111(a)), or any
       truck tractor-semitrailer combination in which the
       semitrailer has a length of not more than 28.5 feet
       and that generally operates as part of a vehicle
       combination described in section 31111(c) of this
       title.
49     U.S.C.        § 31114(a)(2).            This      provision        describes           two

categories       of    potential        destinations.       The     first        is    narrow,

comprising only "terminals, facilities for food, fuel, repairs,

and    rest,"        but   it    contains     no   limitations       on    the        types   of
carriers      traveling          to   those   destinations.          Id.         The     second

category        of     potential        destinations       is     much      broader;          it

encompasses all "points of loading and unloading."                                 Id.        But

this category applies only to a subset of carriers defined as

"household       goods       carriers,    motor     carriers    of    passengers,             any

towaway trailer transporter combination (as defined in section

31111(a)), or any truck tractor-semitrailer combination in which

the semitrailer has a length of not more than 28.5 feet and that



                                               4
                                                                        No.    2017AP2525.dk


generally      operates        as      part       of     a    vehicle          combination

[colloquially known as a single 'pup' trailer]."                        Id.

      ¶38     For the STAA to apply in this case, therefore, Central

Transport     had     to   describe        where    it     fit    in    the        matrix    of

destinations and carrier types.                   It settled on the claim that

its   truck    was    headed      to   a    "terminal"        when     its     driver        was

ticketed.      But the claimed "terminal" was a residence.                          At least

two federal courts have noted that not every delivery address is

a "terminal" within the meaning of the STAA:                       "Points of loading

and unloading, unlike locations of terminals, necessarily change

with great frequency and are dependent upon the locations of the

customers serviced by trucking companies."                       A.B.F. Freight Sys.,

Inc. v. Suthard, 681 F.Supp. 334, 344 (E.D. Va. 1988) (quoting

Consolidated Freightways v. Larson, 647 F.Supp. 1479, 1494 (M.D.

Pa. 1986).      So although every terminal is a place of loading and

unloading,     not     every   place        of    loading        and   unloading        is    a

terminal.2       If   it   were     not    so,     there     would     be     no    point     in

describing the two categories of destinations.

      2   See, e.g., 23 C.F.R. § 658.19(a):

           No State may enact or enforce any law denying
      reasonable   access   to   vehicles  with   dimensions
      authorized by the STAA between the NN and terminals
      and facilities for food, fuel, repairs, and rest. In
      addition, no State may enact or enforce any law
      denying reasonable access between the NN and points of
      loading and unloading to household goods carriers,
      motor carriers of passengers, and any truck tractor-
      semitrailer combination in which the semitrailer has a
      length not to exceed 28 feet (28.5 feet where allowed
      pursuant to § 658.13(b)(5) of this part) and which
      generally operates as part of a vehicle combination
      described in §§ 658.13(b)(5) and 658.15(a) of this
      part.
                                              5
                                                                           No.   2017AP2525.dk


       ¶39      Unfortunately,         everyone        seems    to    have    just     assumed

that a residence qualifies as a terminal within the meaning of

49 U.S.C. § 31114(a)(2).               The circuit court did not address this

question.        The    court    of    appeals         candidly      admitted     it    wasn't

deciding        it     either.        Town       of    Delafield      v.     Cent.     Transp.

Kriewaldt, 2019 WI App 35, ¶5 n.2, 388 Wis. 2d 179, 932 N.W.2d

423 ("Because the Town develops no argument challenging Central

Transports' position that the residence where the art supplies

were       to   be     delivered      constitutes         a    'terminal,'       we    assume,

without deciding, that it does.").                      Nor did we choose to take it

up.3       When a party fails to contest an opponent's proposition, we

quite       frequently     take       it    as    admitted      and   proceed         with   our

analysis        accordingly.          But    we       don't    discern     the   meaning      of

statutory terms based on whether the parties choose to contest

them.       We have an independent duty to ensure our understanding

of the statute is accurate.                      A "terminal" does not encompass a

residential          address     simply      because          Delafield      chose     not    to

contest Central Transport's assertion.
       ¶40      I think we should have resolved this case based on

Central Transport's failure to establish that its destination

was a terminal.             This is important because what constitutes

"reasonable access" could be very different depending on which

of     the      STAA-defined          categories         of      destinations          we    are


(Emphasis added.)

       See majority op., ¶14 ("Without the benefit of a contested
       3

argument on this point, we too assume without deciding the
attempted destination was a terminal and therefore covered by
the STAA.").

                                                  6
                                                                        No.    2017AP2525.dk


considering.          The categories don't appear to be arbitrary——they

describe very different types of places that are likely to be

present in very different parts of a town, village, or city.

Terminals (that is, fixed points of cargo transfer) as well as

places where commercial truckers go for food, fuel, repairs, and

rest     are    generally         physically         concentrated      near     interstate

freeways,       and     are       consequently          served   by    a      more    robust

infrastructure.             The    types    of       destinations     described       in    the

second       category        can     be      anywhere,         including       residential

neighborhoods and other sensitive areas (such as near hospitals,

playgrounds,         etc.)    where       the    infrastructure        may     not     be    as

sturdy.        What constitutes "reasonable access" for one category

of destinations may be entirely unreasonable for the other.                                 But

because we just assumed Central Transport's destination was a

terminal, our pronouncement on "reasonable access" applies to

both   without        the    benefit       of    ever    considering       what      relevant

distinctions might exist between the two categories.                                 This is

especially problematic in light of the paradox that Delafield's
ordinance (if covered by the STAA) must be in some manner in

keeping      with     uniform      standards.            Presumably,       those      uniform

standards will vary depending on the category of destinations to

which they apply.

       ¶41     For    these       reasons,       I    respectfully      concur       in     the

court's judgment, but I do not join the opinion.

       ¶42     I am authorized to state that Justice REBECCA GRASSL

BRADLEY                      joins                      this                  concurrence.



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    No.   2017AP2525.dk




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