                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 07-2784
                                  ___________

BNSF Railway Company; Duluth,            *
Missabe & Iron Range Railway             *
Company; National Railroad               *
Passenger Corporation, doing             *
business as Canadian Pacific Railway;    *
Otter Tail Valley Railroad Company;      *
Inc.; Union Pacific Railroad Company,    *
                                         * Appeal from the United States
            Appellants,                  * District Court for the
                                         * District of Minnesota.
      v.                                 *
                                         *
Lori Swanson, in her official capacity *
as Attorney General of the State of      *
Minnesota,                               *
                                         *
            Appellee.                    *
                                    ___________

                            Submitted: April 18, 2008
                               Filed: July 3, 2008
                                ___________

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
                          ___________

BEAM, Circuit Judge.

       Here, we must determine whether the Federal Railroad Safety Act (FRSA), 49
U.S.C. § 20101 et seq., preempts Minnesota statute section 609.849. Appellant
railroads sought a declaratory judgment that the Minnesota statute was preempted by
the FRSA as a result of the Internal Control Plans regulation (ICP), adopted pursuant
thereto by the Federal Railroad Administration (FRA) at 49 C.F.R. § 225.33(a). The
district court held that the FRSA preempted subsection (a)(2) of the Minnesota statute
but did not preempt subsection (a)(1). Therefore the court, granted in part and denied
in part the railroads' motion for summary judgment, enjoined the enforcement of
subsection 609.849(a)(2) against the railroads but refused to enjoin enforcement of
subsection 609.849(a)(1). The railroads appeal. Because we find that the ICP "covers
the subject matter" of that addressed in each section of the Minnesota statute, we
reverse.

I.    BACKGROUND

      Enacted in 2005, the Minnesota criminal statute at issue provides:

      Railroad that obstructs treatment of an injured worker
      (a) It shall be unlawful for a railroad or person employed by a railroad
            to intentionally:
      (1) deny, delay, or interfere with medical treatment or first aid
            treatment to an employee of a railroad who has been injured
            during employment; or
      (2) discipline, harass, or intimidate an employee to discourage the
            employee from receiving medical attention or threaten to
            discipline an employee who has been injured during employment
            for requesting medical treatment or first aid treatment.
      (b) Nothing in this section shall deny a railroad company or railroad
            employee from making a reasonable inquiry of an injured
            employee about the circumstance of an injury in order to gather
            information necessary to identify a safety hazard.
      (c) It is not a violation under this section for a railroad company or
            railroad employee to enforce safety regulations.




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      (d)    A railroad or a person convicted of a violation of paragraph (a),
             clause (1) or (2), is guilty of a misdemeanor and may be fined not
             more than $1,000 but is not subject to an incarcerative sanction.

Minn. Stat. § 609.849.

       In their declaratory judgment action, the railroads claimed that federal
legislation already covered the subject matter addressed by the Minnesota statute. The
FRA promulgated a regulation in 1996 that contains language similar to that in the
Minnesota statute, and forms the basis for the railroads' challenge in this case.
Codified at 49 C.F.R. § 225.33, and entitled "Internal Control Plans," subsection (a)(1)
of the ICP provides:

      (a) Each railroad shall adopt and comply with a written Internal
      Control Plan that shall be maintained at the office where the railroad's
      reporting officer conducts his or her official business. Each railroad
      shall amend its Internal Control Plan, as necessary, to reflect any
      significant changes to the railroad's internal reporting procedures. The
      Internal Control Plan shall be designed to maintain absolute accuracy
      and shall include, at a minimum, each of the following components:
      (1) A policy statement declaring the railroad's commitment to
      complete and accurate reporting of all accidents, incidents, injuries, and
      occupational illnesses arising from the operation of the railroad, to full
      compliance with the letter and spirit of FRA's accident reporting
      regulations, and to the principle, in absolute terms, that harassment or
      intimidation of any person that is calculated to discourage or prevent
      such person from receiving proper medical treatment or from reporting
      such accident, incident, injury or illness will not be permitted or
      tolerated and will result in some stated disciplinary action against any
      employee, supervisor, manager, or officer of the railroad committing
      such harassment or intimidation.

49 C.F.R. § 225.33 (emphasis added).



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      Conducting its preemption analysis, the district court compared the two acts and
held that the ICP did not "cover the subject matter" of subsection (a)(1) of the
Minnesota statute. Thus, the court held subsection (a)(1) of the Minnesota statute
enforceable against the railroads.

        As to the specific dispute on appeal concerning the reach of subsection (a)(1)
of the Minnesota statute, the court held that the ICP prohibits "harassment or
intimidation of any person that is calculated to discourage or prevent such person from
receiving proper medical treatment," while subsection (a)(1) of the Minnesota statute
states that a railroad or its employees may not "deny, delay, or interfere with medical
treatment or first aid treatment to an employee of a railroad who has been injured
during employment." Especially in light of the FRSA's solicitude for state law, the
court held the two statutes addressed wholly separate considerations–"[w]ithholding
or delaying treatment [as contemplated by the state statute] is entirely different
conduct from intimidating or harassing the injured person in an attempt to prevent
treatment [as contemplated by the ICP regulation]." The court also pointed out that
the Minnesota statute went on in subsection (a)(2) to cover harassment and other
behavior discussed in the ICP, further supporting the conclusion that (a)(1) was
intended to cover different behavior. The court finally held that the ICP contained no
provision requiring "prompt" medical treatment. "While the ICP Regulation prohibits
discouragement or prevention of proper medical treatment, it does not place an
affirmative duty on railroads to actually provide prompt medical treatment."

II.   DISCUSSION

       We review the district court's determination concerning the preemption of the
FRSA de novo. In re Derailment Cases, 416 F.3d 787, 792 (8th Cir. 2005). We also
review de novo the district court's grant of summary judgment, viewing the facts and
all reasonable inferences in the light most favorable to the nonmoving party. Duluth,
Winnipeg, & Pacific Ry. Co. v. City of Orr, No. 07-2689, 2008 WL 2467924 at *2

                                         -4-
(8th Cir. June 20, 2008). "In order to create an issue for trial the nonmoving party
must produce sufficient evidence to support a verdict in [its] favor based on more than
speculation, conjecture, or fantasy." Id. (internal quotations omitted) (alteration in
original).

     If a state law conflicts with or frustrates federal law, the state law generally is
preempted. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663 (1993).

      It is the burden of the party advocating preemption under § 20106(a)(2)
      to show that a federal law, regulation, or order covers the same subject
      matter as the state law, regulation, or order it seeks to preempt. If that
      showing is made, the burden shifts to the party resisting preemption to
      prove that the state law, regulation, or order meets all three requirements
      of the savings clause in § 20106(a)(2). These requirements are that the
      law (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; and (C) does not unreasonably burden interstate
      commerce.

City of Orr, 2008 WL 2467924 at *2 (citations omitted).


       Congress passed the FRSA in 1970 to "promote safety in every area of railroad
operations," 49 U.S.C. § 20101, and authorized the Secretary of Transportation to
make regulations and issue orders "for every area of railroad safety." Id. § 20103(a).
The FRSA and regulations are to be "nationally uniform to the extent practicable," and
generally preempt state law covering the same subject matter. Id. § 20106(a). The
question at issue is whether the ICP covers the same subject matter as subsection
(a)(1) of the Minnesota statute. The railroads argue that the court construed the ICP
too narrowly and the Minnesota statute too broadly. Minnesota's argument is just the
opposite–it posits that the railroads seek to interpret the ICP too broadly and the state
statute too narrowly.


                                          -5-
        The general preemption test under the FRSA is whether the Secretary of
Transportation has "prescribe[d] a regulation or issue[d] an order covering the subject
matter of the State requirement." Id. § 20106(a)(2). Regulations "cover" the subject
matter of a safety concern where they "comprise, include, or embrace [that concern]
in an effective scope of treatment or operation." CSX Transp., Inc., 507 U.S. at 664-
65. The ICP must "substantially subsume the subject matter of the relevant state law,"
not merely "touch upon" or "relate to" that subject matter. Id. at 664. What is
important is that the FRA has considered the "subject matter" and has addressed it "in
an effective scope of treatment or operation." Id. at 664-65. We approach our
preemption analysis mindful of a court's reluctance to find preemption when
interpreting a federal statute pertaining to a subject traditionally governed by state law.
Id. at 664.

       This circuit has previously dealt with preemption issues under the FRSA in
similar contexts, although not in the area of specific state legislation. In In re
Derailment Cases, the Eighth Circuit held that various FRA regulations concerning
railroad inspections of freight cars preempted a common law claim in which the
plaintiffs asserted that they were injured as a result of negligent inspections. 416 F.3d
at 794. We explained that "a regulatory framework need not impose bureaucratic
micromanagement in order to substantially subsume a particular subject matter." Id.

       Likewise, in Peters v. Union Pac. R.R. Co., 80 F.3d 257 (8th Cir. 1996), the
court held that the Department of Transportation's locomotive engineer certification
regulations preempted a state common law conversion claim. The plaintiff had argued
that, because the regulations did not expressly address the right of a certified engineer
to possess a certification card, they did not preempt his state law claim. The panel
disagreed, explaining that since the regulations set out a comprehensive administrative
adjudication scheme for handling certification disputes, they necessarily covered the
subject matter of the plaintiff's conversion claim and therefore preempted that claim
as a matter of federal law. Id. at 262.

                                           -6-
       Here, the district court read the ICP too narrowly. While the federal statute
does not expressly deal with the "delay" or "interference" with medical treatment as
the Minnesota statute specifically states in subsection (a)(1), the ICP addresses the
identical safety concerns and creates an administrative regulatory framework that both
prohibits all employer interference with employee medical treatment and establishes
an enforcement mechanism to punish such interference. Any state legislation
concerning delay or interference with medical treatment is substantially subsumed by
the federal prohibition against harassment or intimidation of any person calculated to
discourage or prevent such person from receiving proper medical treatment.

      Generally, determining the safety concerns that a state or federal
      requirement is aimed at will necessarily involve some level of
      generalization that requires backing away somewhat from the specific
      provisions at issue. Otherwise a state law could be preempted only if
      there were an identical federal regulation, and . . . Easterwood teaches
      that this is not so.

Burlington N. & Santa Fe Ry. Co. v. Doyle, 186 F.3d 790, 796 (7th Cir. 1999)
(citations omitted).1

       The district court's conclusion that the Minnesota statute actually establishes an
"affirmative duty" on railroads to provide prompt medical treatment is not supported
by the statutory language. Nothing in the state statute supports that conclusion.
Requiring a railroad not to deny, delay or interfere with medical treatment does not,


      1
       Minnesota also makes much of its state's severability jurisprudence, arguing
that because subsection (a)(1) of the state statute is severable from subsection (a)(2),
Cellco P'ship v. Hatch, 431 F.3d 1077, 1083-84 (8th Cir. 2005), cert. denied, 127 S.
Ct. 433 (2006), subsection (a)(1) necessarily has a meaning separate and independent
from subsection (a)(2)'s prohibition on harassment and intimidation. This is much to
do about nothing because our determination today is whether subsection (a)(1), on its
own, is preempted by the ICP, and we determine that it is.

                                          -7-
even inferentially, require that the railroad affirmatively provide prompt treatment.
No construction of that language, fairly read, supports such an interpretation. And,
even if we were to entertain such an erroneous construction of the Minnesota statute,
any requirement of "prompt" treatment would likewise be subsumed by the ICP,
which addresses "proper" medical treatment in a general sense.

       Because Minnesota does not claim that this legislation falls within the savings
clause, we do not address whether the legislation (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; and (C) does not unreasonably burden
interstate commerce. 49 U.S.C. § 20106(a)(2)(A), (B), (C); City of Orr, 2008 WL
2467924 at *2-5. Additionally, we need not consider how the FRA investigates
complaints and issues citations pursuant to the ICP or what the Secretary's purpose
was when it enacted the ICP. While these are interesting issues, our inquiry is only
whether the subject matter of the ICP substantially subsumes that of the Minnesota
statute. Easterwood, 507 U.S. at 664. We conclude today that it does.

III.   CONCLUSION

     For the foregoing reasons, we reverse the judgment of the district court and
remand.
                     ______________________________




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