                                ATTORNEY GENERAL                       OF   TEXAS
                                              GREG        ABBOTT




                                                   June 17,2005



The Honorable Kerry Spears                                 Opinion No. GA-033 1
Milam County and District Attorney
The Blake Building                                         Re: Whether federal law preempts Transportation
204 North Central                                          Code section 471.007, which imposes a criminal
Cameron, Texas 76520                                       penalty against a railway company if its train
                                                           blocks a railroad crossing for more than ten
                                                           minutes (RQ-0299-GA)

Dear Ms. Spears:

         You ask whether federal law preempts section 471.007 of the Transportation Code, which
imposes a criminal penalty against a railway company if its train blocks a railroad crossing for more
than ten minutes. See TEX.TRANSP.     CODEANN. 6 47 1.007 (Vernon Supi. 2004-05). * In particular,
you ask about the federal Interstate Commerce Commission Termination Act of 1995 (ICCTA), the
Federal Railroad Safety Act (FRSA), and the Commerce Clause of the United States Constitution.
See Brief, supra note 1, at 1. You submit this query not only on your own behalf but also on behalf
of the county attorneys of Williamson County and Maverick County. See Request Letter, supra note
1, at 1.

I.       The StateStatuteand its Enforcement

        Section 471.007 of the Transportation Code provides that “[a] railway company commits an
offense if a train of the railway company obstructs for more than 10 minutes a street, railroad
crossing, or public highway.” TEX.TRANSP.     CODE ANN. 9 471.007(a) (Vernon Supp. 2004-05). It
requires a peace officer charging a railway company for an offense to “prepare in duplicate a citation
to appear in court and attach one copy of the citation to the train or deliver the copy to an employee
or other agent of the railway company.” Id. 0 47 1.007(c).’ “The hearing must be before a magistrate
who has jurisdiction of the offense in the municipality or county in which the offense is alleged to
have been committed.” Id. $47 1.007(e). It is a defense to prosecution under section 47 1.007 that


          ‘See Letter and Brief (Exhibit “D”) from Honorable Kerry Spears, Milam County and District Attorney, to
Honorable Greg Abbott, Texas Attorney General (Dec. 7, 2004) (on tile with Opinion Committee, also available at
http://www.oag.state.tx.us)  [hereinafter Request Letter and Brief respectively].

         ‘Section 471.007(c) further states that “[t]he citation must show: (1) the name of the railway company; (2) the
offense charged; and (3) the time and place that a representative of the railway company is to appear in court.” TEX.
TRANSP.  CODEANN. $471.007(c) (Vernon Supp. 2004-05).
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the train obstructed “the street, railroad crossing, or public highway because of an act of God or
breakdown of the train.” Id. 0 471.007(d). An offense under section 471.007 is a misdemeanor
punishable by a fine of not less than $100 or more than $300. See id. 3 471.007(b).

        You explain that in the past few years Milam County law enforcement officers have issued
numerous citations to railway companies for obstructing a railroad crossing. See Request Letter,
supra note 1, at 1. The railway companies have responded to prosecutions of the citations by filing
motions to quash based on preemption of the state statute by federal law, See id. The courts in your
county before which the citations are pending have issued orders holding the cases in abeyance while
your office obtains an attorney general opinion on whether federal law preempts section 471 .007.3

II.     Analysis:    Whether Federal Law PreemDts the State Statute

        Under the Supremacy Clause of the United States Constitution, the laws of the United States
are “the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2. If a state law conflicts with federal law, it
is preempted and has no effect. Maryland v. Louisiana, 451 U.S. 725,747 (1981); Am. Cyanamid
Co. v. Geye, 79 S.W.3d 21,23 (Tex. 2002).

        There are three ways that a federal statute may preempt a state law. See Great Dane Trailers,
Inc. v. Estate of VeZZs,52 S.W.3d 737, 743 (Tex. 2001). First, “[a] federal law may expressly
preempt state law.” Id. (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504,5 16 (1992)). Second,
“federal law or regulations may impliedly preempt state law or regulations if the statute’s scope
indicates that Congress intended federal law or regulations to occupy the field exclusively.” Id.
(citing Freightliner Corp. v. Myrick, 5 14 U.S. 280,287 (1995)). Finally, state law is also impliedly
preempted if it actually conflicts with federal law or regulations, because “( 1) it is impossible for a
private party to comply with both state and federal requirements; or (2) state law obstructs
accomplishing and executing Congress’ full purposes and objectives.” Id. (citations omitted).

        A.       The Interstate Commerce Commission Termination                  Act of 1995

              The ICCTA, which became effective on January 1, 1996, abolished the Interstate
Commerce Commission and created the Surface Transportation Board (“SD”). Section 10501(b)
of the ICCTA provides that jurisdiction of the STB 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

                         (2) the construction, acquisition, operation, abandonment, or
                 discontinuance of spur, industrial, team, switching, or side tracks, or


        ‘See Letter from Dan Cervenka, Assistant Milam County and District Attorney, to Nancy S. Fuller, Chair,
Opinion Committee, Office of Attorney General (Feb. 28,2005) (on file with Opinion Committee).
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                   facilities, even if the tracks are located, or intended to be located,
                   entirely in one State,

                   is exclusive. Except as otherwiseprovided in thispart, 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. 0 10501(b) (2000) (emphasis added).

         The United States Court of Appeals for the Fifth Circuit recently concluded on the basis of
this language that the ICCTA expressly preempted section 47 1.007 of the Transportation Code. See
Friberg v. Kansas City S. Ry. Co., 267 F.3d 439,444 (5th Cir. 2001). In that case, business owners
sued a railway company for blocking the road to their nursery alleging negligence and negligence
per se. See id. at 441. The district court had denied the railway company’s motion for summary
judgment, which contended that the ICCTA preempted the plaintiffs’ claims. See id. At the time
of the events at issue, section 471.007 had prohibited railroad officers, agents, servants or receivers
from wilfully allowing a standing train to obstruct a crossing for more than five minutes. See id. at
441 n.2. The Texas Legislature amended section 471.007 to its present form, extending the time
limit to ten minutes and deleting the “‘standing train’ limitation,” in 1999. See id. ; see also Act of
May 26, 1999, 76th Leg., R.S., ch. 1023, 9 1, 1999 Tex. Gen. Laws 3812 (amending section
471.007).

         The Friberg court stated that the ICCTA’s premption provision, see 49 U.S.C. $ 10501(b)
(2000), “could not be more precise, and it is beyond peradventure that regulation of. . . train
operations, as well as the construction and operation of . . . side tracks, is under the exclusive
jurisdiction ofthe STB unless some other provision in the ICCTAprovides otherwise.” Friberg, 267
F.3d at 443. Noting that “[nlothing in the ICCTA otherwise provides authority for a state to impose
operating limitations on a railroad like those imposed by the Texas Anti-Blocking Statute,” the court
held that “the Texas Anti-Blocking Statute . . . [is] preempted by the ICCTA.” Id. at 444.

         A brief submitted with your request notes that the Fifth Circuit stated in a footnote that it did
not decide “what impact the ICCTA would have upon a state provision pertaining strictly to such
traditionally state-controlled safety issues as local law enforcement and emergency vehicle access.”
Id. at 444 n. 18.4 But Friberg clearly holds that the ICCTA preempts the state statute as well as the
plaintiffs’ claims. See id. at 444. Contrary to the brief’s assertion, the footnoted aside is not a
suggestion that section 47 1.007, if applied only in circumstances involving law enforcement and
emergency vehicle access, would not be preempted. Rather, the aside acknowledges the possibility
that the Texas Legislature might be able to craft a statute regulating blocking to the extent it
interferes with state and local law enforcement or emergency response that is not preempted. But
such a statute has not been enacted. Moreover, though the Texas Legislature amended section


          4See Brief, supra note 1, at 2 (“The Fifth Circuit states that if an issue between the Texas Anti-Blocking   statute
and safety arises, preemption of state law under the ICCTA may be decided differently.“).
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47 1.007 in 1999, the current statute now prohibits blocking under any circumstances, except when
proven to be due to “an act of God or breakdown of the train.“5 Indeed, the current statute, which
prohibits blocking by a standing or moving train, criminalizes a broader range of railroad operations.
In its present state, the statute may not be said to “pertain[J strictly to such traditionally
state-controlled safety issues as local law enforcement and emergency vehicle access.” Id. at 444
n.18.

         The brief also suggests that the Friberg case, which considered the Texas statute in the
context of common-law negligence claims, is distinguishable and would not apply in the criminal
enforcement context because the court’s ultimate holding was based on the concern that the
plaintiffs’ state law claims imposed economic regulation.6 However, the court expressly stated that
criminal enforcement of the statute would amount to economic regulation:

                 We cannot accept the trial court’s reasoning that the Texas
                 Anti-Blocking Statute is a criminal provision that does not reach into
                 the area of economic regulation of railroads. Regulating the time a
                 train can occupy a rail crossing impacts, in such areas as train speed,
                 length and scheduling, the way a railroad operates its trains, with
                 concomitant economic ramifications that are not obviated or lessened
                 merely because the provision carries a criminal penalty.

Id. at 443.

        Moreover, a Michigan federal district court held that the ICCTA preempted the criminal
enforcement of a similar anti-blocking statute7 on the basis that the statute’s enforcement would
impose an economic burden. See CSX Transp., Inc. v. City of Plymouth, 92 F. Supp. 2d 643,655
(E.D. Mich. 2000). After receiving numerous citations for violating the law, a railroad company
filed an action seeking a declaratory judgment that the Michigan statute prohibiting a railroad from
blocking vehicular traffic at an intersection for longer than five minutes was preempted by the
FRSA, the ICCTA, and the Commerce Clause. See id. at 645. With respect to the ICCTA, the
federal court concluded that


        ‘TEx. TRANSP.
                    CODEANN. p 471.007(d) (V emon Supp. 2004-05) (providing                a defense to prosecution).

        6See Brief, supra note 1, at 2-3.

        ‘The statute at issued provided:

        (1) A railroad shall not permit a train to obstruct vehicular traffic on a public street or highway for
        longer than 5 minutes at any 1 time, except the obstruction shall not be considered a violation under
        the following circumstances:

                 (a) If the train is continuously moving in the same direction at not less than 10 miles
                 per hour for not longer than 7 minutes.

                 (b) If the railroad can show that the incident occurred as a result of a verifiable
                 accident, mechanical failure, or unsafe condition.

        CSX Transp., Inc. v. City ofPlymouth, 283 F.3d 812, 817 (6th Cir. 2002).
The Honorable Kerry Spears - Page 5                    (GA-033 1)




               the statute could also be fairly characterized as requiring the railroad
               to make substantial capital improvements to upgrade its class of track
               or relocate its yards. Viewed in this way, the law does not affect
               speed, length, or air brake tests, but rather requires the railroad to
               undergo substantial renovations at the state’s command. To the
               extent the state law is viewed as having the effect of requiring the
               railroad to undergo substantial capital improvements, the Court finds
               that the law is preempted [by the ICCTA].

Id. at 658. The court ultimately concluded that any limitation on the time that a train may block a
crossing must come from the federal government and granted the railroad’s motion for summary
judgment. See id. at 663.

        Based on the Fifth Circuit’s very broad holding in Friberg and the district court’s reasoning
in Plymouth, a criminal enforcement case, we have no doubt that a court would conclude that the
ICCTA preempts the criminal enforcement of section 471.007. While we believe that the Fifth
Circuit’s holding is dispositive, we also consider whether the FRSA preempts section 471.007, given
your apparent concern that Friberg arose in the civil context and addressed a slightly different
version of the statute.

       B.      The Federal Railroad Safety Act

                Congress enacted the FRSA in 1970 to “promote safety in every area of railroad
operations and reduce railroad-related accidents and incidents.” 49 U.S.C. 4 20101 (2000). The
FRSA gives the Secretary of Transportation the power to “prescribe regulations and issue orders for
every area ofrailroad safety.” Id. 9 20103(a). In order to promote the national uniformity ofrailroad
regulation, Congress included an express preemption provision. The FRSA provides in pertinent
part:
                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. 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-

                 (1) is necessary to eliminate or reduce an essentially local safety or
               security hazard;
The Honorable Kerry Spears - Page 6                             (GA-033 1)



                   (2) is not incompatible with a law, regulation, or order of the
                  United States Government; and

                     (3) does not unreasonably burden interstate commerce.

Id. 3 20106.

        Applying this language, the Michigan federal district court in Plymouth concluded that the
FRSA expressly preempted the Michigan anti-blocking statute. See Plymouth, 92 F. Supp. 2d at
649-58. The United States Court of Appeals for the Sixth Circuit subsequently upheld the district
court’s holding. See CSX T’ransp.,Inc. v. City OfPZymouth, 283 F.3d 812 (6th Cir. 2002).* As the
Sixth Circuit explained, 49 U.S.C. $20106

                  permits state regulation related to railroad safety only if:

                          (1) the Secretary of Transportation has not yet regulated the
                  subject matter of the state regulation (the first savings clause), or

                          (2) the regulation (a) is necessary to eliminate an essentially
                  local hazard, (b) does not conflict with federal law, and

                        , (c) does not unreasonably burden interstate commerce (the
                  second savings clause).

Id. at 815.

        With respect to the second savings clause, the district court had held that because the
Michigan law is applicable to the entire state, the statute is not concerned with “eliminat[ingJ an
essentially local hazard,” and the parties did not appeal that holding. See id. at 8 15. However, the
parties did appeal the district court’s holding with respect to the first savings clause that the state law
regulated conduct already regulated by federal law. Noting that “the amount of time a moving train
spends at a grade crossing is mathematically a function of the length of the train and the speed at
which the train is traveling,” the Sixth Circuit agreed with the district court that the Michigan statute
would require the railroad “to mod@ either the speed at which its trains travel or their length, and
would also restrict [its] performance of federally mandated air brake tests.” Id. at 817. The court
continued:

                         To the extent that the Michigan statute would force CSXT to
                  modify the length of its trains, the Supreme Court long ago held that



           *Given its conclusion that the statute was preempted by the FRSA, the Sixth Circuit did not consider whether
the statute was preempted by the ICCTA. See Plymouth, 283 F.3d at 817 (“Because we have concluded that the district
court did not err in holding that the Michigan statute is preempted by the FRSA, we decline to address the question of
whether the state law is also preempted by the ICCTA.“).
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                   state regulation of train length violates the Commerce Clause. S. Pac.
                   Co. v. Arizona, 325 U.S. 761,65 S.Ct. 1515, 89 L.Ed. 1915 (1945)
                   (holding that the safety benefits of limiting the length of trains is
                   outweighed by the resultant burden upon interstate commerce); see
                   also R.J. Corman R.R. Co. v. Palmore, 999 F.2d 149, 153 (6th Cir.
                    1993) (holding that a state statute can be preempted by a federal
                   statute even if there is no federal regulation directly addressing the
                   subject matter of the state statute). There are also numerous federal
                   regulations that cover the speed at which trains may travel and the
                   stops that trains must make to test their air brakes. The Supreme
                   Court, for example, has held that the speed limits set by 49 C.F.R.
                   $2 13.9 “should be understood as covering the subject matter of train
                   speed with respect to the track conditions, including the conditions
                   posed by grade crossings.” Easter-wood, 507 U.S. at 675 (emphasis
                   added). These federal regulations thus “substantially subsume the
                   subject matter of the relevant state law.” Id. at 664.

Id. The court concluded that “because the Secretary of Transportation has already prescribed
regulations covering the subject matter of the state statute, the first savings clause of the FRSA’s
express preemption provision does not apply to the Michigan statute,” and affirmed the district
court’s holding that the Michigan statute is preempted by the FRSA. Id.

        In addition, several courts have concluded that FRSA preempts local ordinances prohibiting
or regulating blocking and have enjoined their enforcement or dismissed citations for their violation.’




           ‘See CSX Transp., Inc. v. City ofPlymouth, 86 F.3d 626,630 (6th Cir. 1996) (holding that the FRSA preempted
a city ordinance that imposed a five minute blocking limit) (affig            district court order permanently enjoining
ordinance’s enforcement); Notilk & W. Ry. Co. v. City of Oregon, No. 3:96CV7695 (N.D. Ohio May 26, 1997)
(unpublished), affd, 210 F.3d 372 (6th Cir. 2000) (unpublished) (affirming district court order permanently enjoining
city from enforcing municipal anti-blocking ordinance); City of Seattle v. Burlington N. R. R. Co., 4 1 P.3d 1169, 1174
(Wa. 2002) (holding that the FRSA preempted city ordinances regulating street blockages for periods over four minutes
because they affected “the speed at which trains travel, train length, and trains in physical motion,” areas regulated by
the FRSA) (affirming appellate court decision dismissing citations); see also Rotter v. Union Pac. R.R. Co., 4 F. Supp.
2d 872, 874 (E.D. MO. 1998) (holding that the FRSA preempted a municipal ordinance prohibiting a railroad from
blocking a crossing for more than five minutes) (dismissing plaintiffs claim that railroad was negligent per se because
it violated a municipal ordinance by blocking street crossing for more than five minutes).

           A federal district court in Indiana determined that the FRSA preempts an Indiana statute making it unlawful for
a railroad corporation to obstruct public travel at a railroad crossing for more than ten minutes. See CSX Transp., Inc.
v. City of Mitchell, 105 F. Supp. 2d 949,95 l-52 (S.D. Ind. 1999). However, the district court’s order permitted officials
to enforce the statute if they first established that the blocking did not occur due to an operation required by federal law.
See id. at 952-53. Only one other court has cited this case, and it did so only for the proposition that an anti-blocking
provision conflicts with federal law and is preempted by the FRSA. See Burlington N. R.R. Co., 41 P.3d at 1174. We
are not aware of any other case considering an anti-blocking statute or ordinance that has held the provision preempted
and also permitted enforcement.
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Two attorney general opinions from other states have also concluded that the FRSA preempts local
anti-blocking provisions.”

       Like the Michigan statute, the Texas statute prohibiting blocking for more than ten minutes
necessarily regulates train speed and length, matters regulated by federal law. See id. Based on the
Sixth Circuit’s analysis in the Plymouth case and the other cases addressing anti-blocking
ordinances, we believe a court considering the Texas statute would conclude that it is preempted by
the FRSA.

        Because we believe a court would conclude that both the ICCTA and the FRSA preempt
section 47 1.007, we need not reach the constitutional question regarding whether section 47 1.007
violates the Commerce Clause. See, e.g., Friberg, 267 F.3d at 444 n. 18 (“Because of today’s holding
we need not and do not decide whether the Fribergs’ claims are also preempted by. . . the Commerce
Clause . . . .”); PlymoutJr, 86 F.3d at 630 (“In light of CSXT’s entitlement to judgment based on
FRSA preemption, we need not rule on CSXT’s Commerce Clause and discriminatory taxation
claims.“).




          “See Op. Kan. Att’y Gen. 2000-65 (2000) at 3 (advising that “local legislation that imposes time restrictions
on trains obstructing traffic . . . may be preempted by the [FRSA]“); Op. La. Att’y Gen. 96-228A (1997) at 3 (concluding
that a “parish ordinance attempting to limit blocking public roads is ‘related to railroad safety’ and this is expressly
preempted by the FRSA”).
The Honorable Kerry Spears - Page 9                (GA-033 1)



                                    SUMMARY

                      Section 47 1.007 of the Transportation Code, which imposes
              a criminal penalty against a railway company if its train blocks a
              railroad crossing for more than ten minutes, is preempted by the
              federal Interstate Commerce Commission Termination Act of 1995
              and the Federal Railroad Safety Act.

                                            Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
