                                        PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

                  No. 12-1934
                 _____________

         MD MALL ASSOCIATES, LLC
    Trading as MacDade Mall Associates, L.P.,
                                   Appellant

                        v.

        CSX TRANSPORTATION , INC.

                _______________

  On Appeal from the United States District Court
     for the Eastern District of Pennsylvania
             (D.C. No. 2-11-cv-04068)
      District Judge: Hon. Juan R. Sanchez
                _______________

                     Argued
                 January 8, 2013

Before: RENDELL, FISHER, and JORDAN, Circuit
                  Judges.

              (Filed: April 30, 2013)
                _______________
Marc B. Kaplin [ARGUED]
Pamela M. Tobin
Kaplin, Stewart, Meloff, Reiter & Stein
910 Harvest Drive
P.O. Box 3037
Blue Bell, PA 19422
      Counsel for Appellant

Richard P. Caldarone
Andrew Tauber [ARGUED]
Mayer Brown
1999 K Street, NW
Washington, DC 20006

Heather M. Gamache
John E. Young, IV
Flynn & Wirkus
1500 John F. Kennedy Blvd. - #312
Philadelphia, PA 19102
      Counsel for Appellee
                    _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       MD Mall Associates, L.L.C. (“MD Mall”), appeals
from the summary judgment entered against it by the United
States District Court for the Eastern District of Pennsylvania
on MD Mall‟s claims that CSX Transportation, Inc. (“CSX”),
a railroad, is liable for storm water flooding MD Mall‟s




                              2
property. For the reasons that follow, we will vacate the
District Court‟s grant of summary judgment, and remand for
further proceedings consistent with this opinion.

I.     Background1

       A.     The Runoff Problem

        MD Mall owns and operates the MacDade Mall (the
“Mall”) located in Delaware County, Pennsylvania. The Mall
is bounded on the south by a single railroad track owned by
CSX, and, interestingly enough, on the east by South Avenue.
CSX‟s property consists of the track and two drainage
ditches, one running along either side of the track. Houses
located to the south of the track are at a higher elevation than
the track, and the track is at a higher elevation than the Mall.
CSX‟s predecessor in interest designed and installed an
earthen berm on the north side of the track to prevent storm
water from flowing downhill onto the property occupied by
the Mall. The berm straddles the property line of the Mall
and the railroad, with the north side of it sloping down into
the parking lot. The Mall claims ownership of that slope up
to the crest of the berm.


       1
        In accordance with our standard of review, see infra
note 6, we set forth the facts in the light most favorable to
MD Mall. See Gonzalez v. Sec’y of Dep’t of Homeland Sec.,
678 F.3d 254, 257 (3d Cir. 2012) (“When reviewing a grant
of summary judgment the court must view the facts in the
light most favorable to the nonmoving party and draw all
inferences in that party‟s favor.” (internal quotation marks
omitted)).




                               3
       For many years after being built, the berm prevented
storm water from discharging onto MD Mall‟s property. In
October 2010, however, storm water breached the berm at a
spot near South Avenue, allowing water runoff and debris
from CSX‟s property to flow down the slope and overwhelm
a private storm water inlet located in the Mall parking lot. An
MD Mall representative sent two letters, dated October 29,
2010, and January 13, 2011, asking CSX to contact him to
discuss a resolution to the runoff problem. In response,
CSX‟s road master responsible for that portion of the track
inspected the site. Based on the road master‟s findings, a
CSX engineer wrote in an internal memorandum that,
“[i]nstead of the water flowing over the crossing [at South
Avenue] and down the road towards the storm drains, it is not
reaching the crossing and [is] instead running towards the
[Mall] property.” (App. at 56.) The engineer proposed that
CSX dig a “[d]itch” on CSX property “along the area and
block the hill leading to the property, allowing the water to
flow into the road and down to [a public] storm drain.” (App.
at 56.) He also raised the possibility of installing a culvert
under South Avenue to send the water to a nearby stream. In
an email dated January 20, 2011, the engineer notified MD
Mall that CSX intended to implement the first option, which
was less costly, and that it would complete the project “in a
timely fashion.” (App. at 57.)

       Despite that assurance, CSX did not go forward with
that plan. Instead, it began constructing a concrete spillway
on the Mall‟s side of the berm to direct CSX‟s storm water
into the Mall‟s private drainage inlet. CSX workers cleared
out a channel on the berm and set up wooden forms to create
the spillway, all of which MD Mall asserts was done without
its consent, while CSX claims that MD Mall had consented to




                              4
the installation in order to stop mud and debris from entering
the Mall property.

       Whether or not there had been consent, when the
Mall‟s manager discovered what CSX was doing, he
immediately halted the work, demanding that the wooden
forms be removed and that the Mall‟s side of the berm be
restored to its original grade. CSX agreed to halt construction
of the spillway, but requested permission to install riprap in
the cleared out channel. MD Mall granted consent in writing
but insisted that CSX provide a permanent solution to the
runoff problem. When CSX was not forthcoming with a
permanent solution, MD Mall filed the present suit, invoking
diversity jurisdiction in the District Court.

      B.      Procedural History

       MD Mall brought claims of negligence (Count I) and
continuing storm water trespass (Count II) against CSX for
“failing to properly maintain CSX‟s property so as to prevent
water on CSX‟s property from flowing over onto [MD
Mall‟s] property and causing damage … .”2 (App. at 122.)
Although it initially sought “compensatory and consequential
damages … , together with prejudgment interest and costs”
(App. at 123), MD Mall later dropped its demand for

      2
         MD Mall also brought a separate trespass claim
(Count III) against CSX for entering the Mall‟s property
without permission to build the concrete spillway on the
Mall‟s side of the berm. After the District Court granted
summary judgment to CSX on Counts I and II but denied
summary judgment on Count III, MD Mall withdrew Count
III.




                              5
damages and sought only injunctive relief that would require
CSX to remedy the runoff problem.

        Both parties moved for summary judgment. MD Mall
had learned during discovery that, in March 2009, CSX had
refurbished the relevant portion of the track, deploying
approximately 30 pieces of heavy equipment to replace 325
railroad ties. Based on that information, MD Mall argued in
its motion for summary judgment that the “substantial
modifications to the tracks‟ drainage system” in 2009 “led to
the discharge of CSX‟s water run-off onto the Mall Property
and the noticeably deep property erosion by fall 2010.”
(Supplemental App. at 80.) For support, MD Mall cited the
deposition testimony of its expert, Dr. Frank X. Browne, who
identified the source of the water problem as CSX‟s 2009
alteration of the drainage system and the hydrological
condition of the property. MD Mall also asserted that, for
five years, CSX had failed to clear out the ditch adjacent to
the berm.

       The fact that storm water had discharged from CSX‟s
property onto MD Mall‟s property was evidence, according to
MD Mall, that CSX had violated a federal regulation enacted
pursuant to the Federal Railroad Safety Act (the “FRSA” or
the “Act”), which “require[s] that CSX manage and control
the stormwater occurring on its property.” (Supplemental
App. at 90.) That regulation provides that “[e]ach drainage or
other water carrying facility under or immediately adjacent to
the roadbed shall be maintained and kept free of obstruction,
to accommodate expected water flow for the area concerned.”
49 C.F.R. 213.33. MD Mall argued that § 213.33 imposed on
CSX a duty to ensure that the earthen berm system that was
designed to prevent water from flowing onto the Mall




                              6
property is properly maintained. (Supplemental App. at 90.)
Given the erosion of the berm and the consequent flooding,
MD Mall continued, “CSX is clearly not accommodating the
expected water flow from its property, as required under
Section 213.33.”3 (Supplemental App. at 90.) As relief, MD
Mall requested that “CSX be ordered to control and manage
the water run-off occurring on its property pursuant to a full
engineering plan.” (Supplemental App. at 91.)

       Despite invoking § 213.33, MD Mall asserted that its
claims were not preempted by the FRSA, even though that
Act expressly provides that “[a] state may adopt or continue
in force a law, regulation, or order related to railroad safety
… until the Secretary of Transportation (with respect to
railroad safety matters) … prescribes a regulation or issues an
order covering the subject matter of the State requirement.”
49 U.S.C. § 20106(a)(2). In support of its position, MD Mall
cited a 2007 amendment to that preemption provision, which
serves as a “[c]larification regarding State law causes of
action.” 49 U.S.C. § 20106 (the “Clarification Amendment”
or the “Amendment”).         The Clarification Amendment
provides that “[n]othing in [the FRSA] shall be construed to
preempt an action under State law seeking damages for
personal injury, death, or property damage alleging that a
party … has failed to comply with the Federal standard of
care established by a regulation or order issued by the


      3
        See also MD Mall‟s Supplemental Mem. in Opp‟n to
CSX‟s Motion for Summ. J. at 6 (arguing that the “clear
mandate” of § 213.33 is that CSX must “manage the
stormwater on its property so that it is not discharged on to
the Mall property in a concentrated and increased way”).




                              7
Secretary of Transportation.” Id. MD Mall argued that,
under the Amendment, its claims were not preempted.

       The District Court saw things differently. It granted
CSX‟s cross-motion for summary judgment, holding that MD
Mall‟s claims were blocked by the express preemption
provision of the FRSA. Because MD Mall had asserted that
CSX was in violation of § 213.33, the District Court held that
MD Mall had “implicitly acknowledge[d]” that the regulation
is applicable to its claims (App. at 7), and the Court then
determined that the claims were preempted.4

        The District Court rejected MD Mall‟s argument that
its negligence and continuing storm water trespass claims
were subject to the Clarification Amendment. While state
law actions are permitted to proceed when they allege a
failure to comply with a federal standard of care, the Court
held that the Amendment is limited to cases “„seeking
damages for personal injury, death, or property damage.‟”
(App. at 8 (quoting 49 U.S.C. § 20106(b)(1)).) Because MD
Mall “appears to have disavowed any claim for damages and
is instead seeking only equitable relief,” the Court determined
that the Amendment did not apply.5 (App. at 8.)

       4
          The District Court mentioned that another regulation,
49 C.F.R. § 213.103, relates to MD Mall‟s claims. Section
213.103 requires railroad tracks to be supported by material
that will, among other things, “[p]rovide adequate drainage
for the track.” Id. § 213.103(c).
       5
        Because the District Court concluded that MD Mall‟s
claims were preempted by the FRSA, it declined to address
CSX‟s alternative argument that the claims were preempted
by the Interstate Commerce Commission Termination Act




                              8
       MD Mall then filed this timely appeal.

II.    Discussion6

       A.     Waiver and Judicial Estoppel

        MD Mall has now discarded its previous position that
§ 213.33 sets the pertinent standard for measuring CSX‟s
liability. It argues instead that the regulation “[does] not even
relate to, let alone cover, a railroad‟s discharge of stormwater
onto an adjoining property.” (MD Mall‟s Opening Br. at 11.)
Because MD Mall raises that argument for the first time on
appeal, CSX asserts that we should not consider it, as MD


(the “ICCTA”). It also declined to evaluate the underlying
substantive merits of MD Mall‟s state law negligence and
storm water trespass claims.
       6
         The District Court had jurisdiction under 28 U.S.C.
§ 1332, and we have jurisdiction under 28 U.S.C. § 1291. We
“review [the] District Court‟s grant of summary judgment de
novo, applying the same standard the District Court applied.”
Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254,
257 (3d Cir. 2012) (internal quotation marks omitted).
Summary judgment is proper only where the pleadings,
discovery, and non-conclusory affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law. Fed. R. Civ. Proc.
56(c). As earlier noted, supra note 1, when reviewing a grant
of summary judgment we “must view the facts in the light
most favorable to the nonmoving party,” in this case MD
Mall, “and draw all inferences in that party‟s favor.”
Gonzalez, 678 F.3d at 257 (internal quotation marks omitted).




                               9
Mall either waived it or is judicially estopped from raising it
now. We thus begin by addressing waiver and estoppel.

              1.     Waiver

        Arguments that are “asserted for the first time on
appeal are deemed to be waived and consequently are not
susceptible to review … absent exceptional circumstances.”
Birdman v. Office of the Governor, 677 F.3d 167, 173 (3d
Cir. 2012) (internal quotation marks omitted). However,
“[w]hile waiver ordinarily bars raising new arguments for the
first time on appeal, this rule is one of discretion rather than
jurisdiction, and it may be relaxed whenever the public
interest so warrants.” Barefoot Architect, Inc. v. Bunge, 632
F.3d 822, 834-35 (3d Cir. 2011) (alteration, citations, and
internal quotation marks omitted); see also Webb v. City of
Phila., 562 F.3d 256, 263 (3d Cir. 2009) (waiver rule may be
relaxed “where the issue‟s resolution is of public importance”
(internal quotation marks omitted)). CSX acknowledges that
this case is of public importance; it argues that MD Mall‟s
claims, if allowed, could subject it and other railroads to
similar claims by myriad other landowners with property near
railroad tracks. Conversely, if MD Mall‟s claims are
preempted, property owners may have no remedy for the
discharge of storm water onto their land by a neighboring
railroad. Either way, MD Mall‟s claims are of public
importance, and we accordingly decline to apply the general
rule of waiver in this case.

              2.     Judicial Estoppel

     CSX also contends that MD Mall is judicially estopped
from claiming that § 213.33 does not cover its claims.




                              10
“Judicial estoppel is a judge-made doctrine that seeks to
prevent a litigant from asserting a position inconsistent with
one that [it] has previously asserted in the same or in a
previous proceeding.” Macfarlan v. Ivy Hill SNF, LLC, 675
F.3d 266, 272 (3d Cir. 2012) (internal quotation marks
omitted). “The doctrine exists to protect the integrity of the
judicial process and to prohibit parties from deliberately
changing positions according to the exigencies of the
moment.” Id. (internal quotation marks omitted). That said,
“we have consistently stated that the doctrine should only be
applied to avoid a miscarriage of justice.” Krystal Cadillac-
Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d
314, 319 (3d Cir. 2003).

       “[T]hree factors inform a federal court‟s decision
whether to apply” judicial estoppel: “there must be (1)
irreconcilably inconsistent positions; (2) adopted in bad faith;
and (3) a showing that estoppel addresses the harm and no
lesser sanction is sufficient.” G-I Holdings, Inc. v. Reliance
Ins. Co., 586 F.3d 247, 262 (3d Cir. 2009) (alterations and
internal quotation marks omitted).          However, “judicial
estoppel is generally not appropriate where the defending
party did not convince the District Court to accept its earlier
position.” Id. CSX insists that MD Mall did convince the
Court to accept its earlier position, because “the court did
accept the Mall‟s „implicit[] acknowledg[ment]‟ that „the
drainage regulation „covers‟ the subject of drainage‟ in the
areas implicated by this case.” (CSX‟s Br. at 22 (quoting
App. at 7).)

      As MD Mall correctly points out, however, the District
Court‟s citation of MD Mall‟s acknowledgment that § 213.33
covers its claims does not rise to the level of reliance




                              11
necessary to trigger judicial estoppel. Before determining
that judicial estoppel bars relief, “courts regularly inquire
whether the party has succeeded in persuading a court to
accept that party‟s earlier position, so that judicial acceptance
of an inconsistent position in a later proceeding would create
the perception that either the first or the second court was
misled.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001)
(internal quotation marks omitted). Because judicial estoppel
“generally prevents a party from prevailing in one phase of a
case on an argument and then relying on a contradictory
argument to prevail in another phase,” id. at 749 (internal
quotation marks omitted), “[a]bsent success in a prior
proceeding, a party‟s later inconsistent position introduces no
risk of inconsistent court determinations and thus poses little
threat to judicial integrity,” id. at 750-51 (citation and internal
quotation marks omitted).

       Judicial estoppel thus does not apply here because MD
Mall did not obtain a benefit from the arguments it made in
the District Court. The arguments it made did not prevail in
any meaningful sense. The District Court instead granted
summary judgment to CSX. In the decisions that CSX cites
to support its judicial estoppel argument, by contrast, judicial
estoppel was found to bar relief because each estopped party
had obtained an unfair litigation benefit as a result of its prior
contradictory position. See New Hampshire, 532 U.S. at 751-
52 (state barred from changing the location of a boundary to
which it had agreed in a prior consent order approved by the
court); Macfarlan, 675 F.3d at 273-74 (plaintiff barred from
seeking reinstatement to his former job when he had accepted
disability benefits based on a purported inability to work);
Krystal, 337 F.3d at 320 (debtor estopped from asserting
claim which he failed reveal to creditors so as to keep the




                                12
recovery on the claim for himself). The doctrine of judicial
estoppel “should only be applied to avoid a miscarriage of
justice.” Krystal, 337 F.3d at 319. In this case, MD Mall did
not benefit from its inconsistent position in the District Court,
and no miscarriage of justice would result from our
entertaining the argument it now advances on appeal. Thus,
while we have no desire to encourage the kind of head-
snapping inconsistency manifested in MD Mall‟s arguments,
we decline to treat its new argument as judicially estopped.

       B.     Express Preemption Under the FRSA

        As already noted, the FRSA provides that a state “law,
regulation, or order related to railroad safety” shall be
preempted by a regulation or order issued by “the Secretary
of Transportation (with respect to railroad safety matters)”
that “cover[s] the subject matter of the State requirement.” 49
U.S.C. § 20106(a)(2). Pursuant to the previously described
2007 Clarification Amendment to that express preemption
provision, even though a federal regulation “covers” a state
law related to railroad safety, a plaintiff may still bring claims
“seeking damages for personal injury, death, or property
damage” when the plaintiff “alleg[es] that a party … has
failed to comply with the Federal standard of care established
by a regulation or order issued by the Secretary of
Transportation.” Id. § 20106(b)(A) (2007).

       In Zimmerman v. Norfolk Southern Corp., 706 F.3d
170 (3d Cir. 2013), we explained that, under the Clarification
Amendment, “claimants can avoid preemption by alleging a
violation of either a „Federal standard of care‟ or the
railroad‟s „own plan, rule, or standard that it created pursuant
to a regulation or order.‟” Id. at 177 (quoting 49 U.S.C.




                               13
§ 20106(b)(1)(A)-(B)).        The Amendment “restricts
preemption in some respects,” id., by clarifying that a claim is
permitted when the allegation is that the railroad did not
comply with the standard established by a federal regulation
(traveling at 90 m.p.h, for example, despite a regulation
limiting train speeds to 60 m.p.h.), “even when [the]
regulation covers the subject matter of [the] claim,” id. The
Clarification Amendment also “preserves cases interpreting
the phrase „covering the subject matter of the State
requirement,‟” so that the well-developed law indulging a
presumption against preemption, as further described herein,
remains intact. Id. (quoting 49 U.S.C. § 20106(a)(2)).

       Zimmerman calls for us to follow a two-step process:
“We first ask whether the defendant allegedly violated either
a federal standard of care or an internal rule that was created
pursuant to a federal regulation.” Id. at 178. If so, as was the
case in Zimmerman, “the plaintiff‟s claim avoids
preemption.” Id. (citing 49 U.S.C. § 20106(b)(1)(A)-(B)). If
not, we ask the second question, which is “whether any
federal regulation covers the plaintiff‟s claim.” Id. (citing 49
U.S.C. § 20106(a)(2)).7

       7
         The universe of possible claims can be thought of as
fitting within three categories: first, those, like the ones in
Zimmerman, that depend upon the breach of a standard set by
federal law (or adopted by a railroad from federal law) as the
basis of liability and are thus not preempted; second, those
that depend on state law as the basis for liability but which
are preempted because there is an applicable FRSA regulation
that entirely covers the plaintiff‟s claim; and, third, those that
depend on state law and are not preempted because there is no
such regulation. The first Zimmerman question seeks to




                               14
       This case is different from Zimmerman in that, on
appeal, MD Mall has abandoned the argument that CSX
violated a federal standard of care and instead insists that the
pertinent federal regulation, § 213.33, does not cover a storm
water discharge dispute of the type before us now. (MD
Mall‟s Opening Br. at 11.) Thus, MD Mall‟s claims are only
preserved from preemption if no federal regulation enacted
pursuant to the FRSA “cover[s] the subject matter [i.e. storm
water runoff] of the State requirement.”            49 U.S.C.
               8
§ 20106(a)(2).

discover which claims fall within the first category, and the
second Zimmerman question brings to light the claims that
fall within the latter two categories.
       8
          Although MD Mall has abandoned its argument
under the Clarification Amendment and we therefore need not
evaluate whether the Amendment applies here, it did argue in
the District Court, as already described, that § 213.33
“require[s] that CSX manage and control the stormwater
occurring on its property” (Supplemental App. at 90), and that
CSX breached that duty through negligence during the 2009
track refurbishment. It said that it was therefore authorized to
bring suit under the Clarification Amendment. The District
Court held, however, that the Clarification Amendment only
saves from preemption state law actions that “seek[] damages
for personal injury, death, or property damage.” 49 U.S.C.
§ 20106(b)(1). The Court read the Amendment‟s silence on
equitable relief as precluding MD Mall‟s request for an
injunction. That conclusion is open to question.
        The Clarification Amendment was a pinpoint piece of
legislation meant to overturn federal court decisions in the so-
called “Minot Derailment Cases.” Those cases, which




                              15
involved the horrifying derailment near Minot, North Dakota,
of tank cars carrying toxic chemicals, interpreted the FRSA to
preempt claims for damages, even when a plaintiff alleged
that a railroad violated federal regulations or its own internal
rules. See Lundeen v. Canadian Pac. Ry. Co., 507 F. Supp.
2d 1006, 1009 (D. Minn. 2007); Mehl v. Canadian Pac. Ry.,
Ltd., 417 F. Supp. 2d 1104, 1106 (D.N.D. 2006). According
to its legislative history, the Amendment was intended to
“clarify the intent and interpretations of the existing
preemption statute and to rectify the Federal court decisions
related to the Minot, North Dakota accident that are in
conflict with precedent.” H.R. Rep. No. 110-259, at 351, 120
Cong. Rec. H8589 (2007), U.S. Code Cong. & Admin. News
2007, p. 119 (emphasis added). To further hammer home its
dissatisfaction with the Minot Derailment Cases, Congress
applied the Amendment to “all pending State law causes of
action arising from activities or events occurring on or after
January 18, 2002,” the exact date of the Minot derailment.
Id.; see also Henning v. Union Pac. R.R. Co., 530 F.3d 1206,
1214 (10th Cir. 2008) (noting that Congress enacted the
Amendment to rectify Minot Derailment Cases); Kurns v.
Chesterton, No. 08-2216, 2009 WL 249769, at *5 (E.D. Pa.
Feb. 3, 2009) (“[T]he amendments were clearly directed at
the Minot, North Dakota, train derailment occurring on
January 18, 2002.”).
        Aimed as it was at the specific difficulty Congress
perceived in the Minot Derailment Cases, the Clarification
Amendment speaks only about claims for damages, but that
does not mean that suits for injunctive relief are beyond its
clarifying effect. Congress used the word “clarification,”
which “indicates [it] sought to resolve an ambiguity rather
than effect a substantive change” in railroad liability under




                              16
       When interpreting the FRSA‟s preemption provisions,
we apply a general “presumption against preemption.”
Bruesewitz, 561 F.3d at 240. “In areas of traditional state
regulation, we assume that a federal statute has not
supplanted state law unless Congress has made such an
intention „clear and manifest.‟” Bates v. Dow Agrosciences,
LLC, 544 U.S. 431, 449 (2005) (internal quotation marks
omitted). “The presumption is relevant even when there is an
express pre-emption clause. That is because „when the text of
a pre-emption clause is susceptible of more than one plausible
reading, courts ordinarily accept the reading that disfavors
pre-emption.‟ Thus, the presumption operates both to prevent
and to limit preemption.” Franks Inv. Co. v. Union Pacific
R.R. Co., 593 F.3d 404, 407 (5th Cir. 2010) (quoting Altria
Grp., Inc. v. Good, 555 U.S. 70, 77 (2008)) (internal
quotation marks omitted); see also N.Y. Susquehanna & W.
Ry. Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir. 2007) (“[A]
federal law does not preempt state laws where the activity
regulated by the state is merely a peripheral concern of the
federal law … .” (alteration and internal quotation marks
omitted)). In the end, preemption applies only if it “is the

the FRSA. Henning, 530 F.3d at 1216. Accordingly, the
Clarification Amendment indicates that “a state law cause of
action is not preempted when it is based on an allegation that
a party failed to comply with a federal standard of care
established by regulation or failed to comply with its own
plan, rule or standard created pursuant to a federal
regulation.” Gauthier v. Union Pac. R.R. Co., 644 F. Supp.
2d 824, 835 (E.D. Tex. 2009). A reading of the Clarification
Amendment that leaves claims for injunctive relief preempted
is not something we need to address now, but we note some
difficulty with the District Court‟s reasoning.




                             17
clear and manifest purpose of Congress” in enacting the law
in question, CSX Transp., Inc. v. Easterwood, 507 U.S. 658,
664 (1993) (internal quotation marks omitted), because “the
purpose of Congress is the ultimate touchstone in every pre-
emption case,” Wyeth v. Levine, 555 U.S. 555, 565 (2009)
(internal quotation marks omitted).

        Beyond those general principles, the Supreme Court
has determined that the FRSA‟s preemption provision
“displays considerable solicitude for state law.” Easterwood,
507 U.S. at 665. For example, Congress enacted the FRSA
“to promote safety in every area of railroad operations and
reduce railroad-related accidents and incidents,” 49 U.S.C.
§ 20101, and the Secretary of Transportation has authority to
“prescribe regulations and issue orders for every area of
railroad safety,” id. § 20103(a), but the preemptive effect of
the statute reaches only state laws “covered” by the statute‟s
implementing regulations. Id. § 20106(a)(2). Because the
term “cover” is a “restrictive term,” preemption will not apply
if the FRSA regulation in question merely “touch[es] upon or
relate[s] to” the subject matter of state law. Easterwood, 507
U.S. at 664 (internal quotation marks omitted). Rather, “pre-
emption will lie only if the federal regulations substantially
subsume the subject matter of the relevant state law.” Id.

       We accordingly held in Strozyk v. Norfolk Southern
Corp., 358 F.3d 268 (3d Cir. 2004), that a regulation‟s “bare
mention of … limited visibility … does not indicate an intent
to regulate [that] condition[],” and that a suit against a
railroad alleging a condition of poor visibility at a railroad
crossing was not preempted. Id. at 273. Other courts have
likewise concluded that a federal regulation dictating that
“[v]egetation on railroad property which is on or immediately




                              18
adjacent to [the] roadbed shall be controlled so that it does not
… [o]bstruct visibility of railroad signs and signals,” 49
C.F.R. § 213.37(b), serves to “preempt[] any state-law claim
regarding vegetative growth that blocks a sign immediately
adjacent to a crossing, but it does not impose a broader duty
[under federal law] to control vegetation so that it does not
obstruct a motorist‟s visibility of oncoming trains.” Shanklin
v. Norfolk S. Ry. Co., 369 F.3d 978, 987 (6th Cir. 2004)
(internal quotation marks omitted). Thus a state law claim is
not preempted if it alleges negligence in allowing vegetation
to obscure safe lines of sight at a railroad crossing. See, e.g.,
Peters v. Union Pac. R.R. Co., 455 F. Supp. 2d 998, 1003
(W.D. Mo. 2006) (vegetation in crossing and right-of-way
were not areas on or immediately adjacent to tracks and
therefore claims that they obstructed sight lines were not
preempted under the FRSA); Murrell v. Union Pac. R.R. Co.,
544 F. Supp. 2d 1138, 1154 (D. Or. 2008) (claims for failing
to provide adequate visibility not preempted under the
FRSA); Anderson v. Wis. Cent. Transp. Co., 327 F. Supp. 2d
969, 979-80 (E.D. Wis. 2004) (claims of vegetation beyond
the roadbed or immediately adjacent to it not preempted); cf.
Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 516 (5th
Cir. 1999) (sound capacity safety regulation addresses only
the sound-producing capacity of the whistles and does not
substantially subsume regulations on when whistles are
sounded); Bradford v. Union Pac. R.R. Co., 491 F. Supp. 2d
831, 838-39 (W.D. Ark. 2007) (failure to keep proper lookout
and crew fatigue not preempted because regulations merely
touched upon the subject and did not subsume them).

       CSX argues that § 213.33, which by its terms requires
that a railroad‟s drainage facilities “under or immediately
adjacent to” the track “be maintained and kept free of




                               19
obstruction,” 49 C.F.R. § 213.33, preempts Pennsylvania law
governing storm water runoff. As the railroad sees it, MD
Mall‟s claims must be dismissed because § 213.33 “cover[s]
the subject of drainage under and around the tracks – and
therefore preempt[s] the Mall‟s claims, which concern
precisely the same topic.”9 (CSX‟s Br. at 18.) Although it
has acknowledged that the limited purpose of § 213.33 “is to
keep water away from the tracks, that‟s it” (Supplemental
App. at 133), CSX has nevertheless taken the aggressive
position that the railroad is thereby permitted to channel its
rainwater onto a neighboring property.             (See, e.g.,
Supplemental App. at 131 (“The railroad can do whatever it
needs to do to keep water away … .”); id. at 133
(“[Section 213.33] doesn‟t say, you can‟t put it on your –
your neighbor‟s land, it doesn‟t say anything, it just says,
keep it away from the tracks.”).

       We reject that conclusion. First, to the extent CSX is
saying that, as long as a regulation involves the same general
topic as a plaintiff‟s claim, such as water drainage, the
regulation “covers” that claim, the argument is at odds with
Supreme Court precedent. A regulation must do more than
“touch upon or relate to [the] subject matter” of a state law

      9
         CSX also asserts that 49 C.F.R. § 213.103(c), which
requires railroads to use ballast that “[p]rovide[s] adequate
drainage for the track” (see supra n.4), serves with § 213.33
to “cover the subject of drainage under and around the
tracks.” (CSX‟s Br. at 27-28.) The railroad provides no
argument, however, for how § 213.103 subsumes state storm
water trespass law other than as a tag-along to § 213.33. We
therefore confine our analysis to CSX‟s arguments regarding
§ 213.33.




                             20
claim; it must “substantially subsume” it. Easterwood, 507
U.S. at 664. The railroad‟s argument for preemption here has
even less to recommend it than the argument in Strozyk that a
regulation requiring vegetation to be trimmed away from
signs preempted a claim that overgrown vegetation created an
unsafe crossing. Stozyk, 358 F.3d at 273. We cannot read the
silence of § 213.33 on a railroad‟s duties to its neighbors
when addressing track drainage as an express abrogation of
state storm water trespass law. Given that the FRSA provides
no express authorization for disposing of drainage onto an
adjoining property, the presumption must be that state laws
regulating such action survive, see Easterwood, 507 U.S. at
668 (noting that preemption is improper when “the
regulations provide no affirmative indication of their effect on
negligence law” (emphasis added)).

       Second, the type of harm sought to be avoided by
§ 213.33 is wholly different than the harm alleged by MD
Mall. Several courts interpreting the Federal Employers
Liability Act (“FELA”), 45 U.S.C. §§ 51-60, which protects
railroad employees from railroad negligence,10 have held that

       10
           Although FELA is a federal statute and federal
preemption “is inapplicable to a potential conflict between
two federal statutes,” Tufariello v. Long Island R.R. Co., 458
F.3d 80, 86 (2d Cir. 2006), there is a general consensus that
“the uniformity demanded by the FRSA „can be achieved
only if [FRSA regulations] are applied similarly to a FELA
plaintiff‟s negligence claim and a non-railroad-employee
plaintiff‟s state law negligence claim.‟” Nickels v. Grand
Trunk W. R.R., Inc., 560 F.3d 426, 430 (6th Cir. 2009)
(quoting Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th
Cir. 2001)); see also id. (“Dissimilar treatment of the claims




                              21
“whether compliance with applicable FRSA safety
regulations precludes a finding that a railroad has been
negligent” depends in large part on whether the regulations in
question “directly address[] the type of harm that ultimately
resulted.” Cowden v. BNSF Ry. Co., 738 F. Supp. 2d 932,
937 (E.D. Mo. 2010); see also Kansas City S. Ry. Co. v.
Nichols Constr. Co., 574 F. Supp. 2d 590, 599 (E.D. La.
2008) (“[T]he types of dangers and precautions contemplated
by a railroad safety regulation are determinative of whether or
not a railroad‟s compliance with regulations will shield it
from liability.”). If the regulations do address the type of
harm alleged, “the compliance with [those] regulation[s] will
preclude a finding of liability … .” Cowden, 738 F. Supp. 2d
at 937. On the other hand, if a plaintiff‟s injuries “come
about in a way not contemplated by a safety regulation, then
the railroad‟s compliance with that regulation might not
preclude its having failed to exercise a reasonable standard of
care.” Nichols Constr, 574 F. Supp. 2d at 599. “Numerous
courts have applied this general principle in finding that a

would have the untenable result of making the railroad safety
regulations established under the FRSA virtually
meaningless: The railroad could at one time be in compliance
with federal railroad safety standards with respect to certain
classes of plaintiffs yet be found negligent under the FELA
with respect to other classes of plaintiffs for the very same
conduct.” (internal quotation marks omitted)). As a result,
courts apply the principles distilled by Easterwood and its
progeny in determining whether a claim under FELA is
substantially subsumed, and therefore precluded, by railroad
safety regulations enacted pursuant to the FRSA, and we
accordingly apply the reasoning of the FELA cases by
analogy.




                              22
given FRSA regulation was or was not intended to prevent
the harm the plaintiff suffered, and that the defendant
railroad‟s duty of care accordingly was or was not subsumed
by the regulation.” Cowden, 738 F. Supp. 2d at 938.
Compare Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th
Cir. 2001) (excessive-speed claim precluded by FRSA
regulations concerning speed limits), with Tufariello v. Long
Island R.R. Co., 458 F.3d 80, 86 (2d Cir. 2006) (holding that
a railroad employee could bring a negligence claim against
his employer for hearing loss resulting from long-term
exposure to train horns because no FRSA preclusion existed,
as the FRSA only prescribed minimum sound levels for
warning devices on trains).

       Section 213.33 is, by CSX‟s own admission, plainly
intended to prevent water from pooling on or around railroad
tracks and thus to avoid potentially dangerous conditions
occasioned by standing water, such as the presence of debris
on tracks, icing conditions, and compromised track integrity.
There is no indication whatsoever that it was intended to
address storm water discharge onto a neighboring property,
which is the harm alleged by MD Mall.11 Again, CSX

      11
          The dissent claims that, in looking to the type of
harm sought to be avoided by an FRSA regulation, we are
flouting Easterwood‟s “unequivocal instruction” that, “in
determining the preemptive effect of a regulation, the only
question is whether the regulation covers the subject matter.”
(Dissent Op. at 5 (citing Easterwood, 507 U.S. at 664).) As
proof, the dissent points to a statement in Easterwood, made
with reference to an FRSA regulation governing train speed,
that the FRSA‟s preemption provision “does not … call for an
inquiry into the Secretary‟s purposes, but instead directs the




                             23
courts to determine whether regulations have been adopted
that in fact cover the subject matter of train speed.”
Easterwood, 507 U.S. at 675. By looking to the purpose
behind an FRSA regulation, the dissent insists, “we divert our
attention from the „coverage‟ of [§ 213.33],” and “we
disregard the preemption analysis required under
Easterwood.” (Dissent Op. at 6.)
        Our colleague‟s reading of Easterwood is out of
context. When the Supreme Court made that statement, it had
already established that the train speed regulation in question
“should be understood as covering the subject matter of train
speed with respect to track conditions, including the
conditions posed by grade crossings.” Easterwood, 507 U.S.
at 675. In other words, the harm sought to be avoided by the
relevant regulation was the danger posed by fast moving
trains. The plaintiff below “nevertheless maintain[ed] that
pre-emption is inappropriate because the Secretary‟s primary
purpose in enacting the speed limits was not to ensure safety
at grade crossings, but rather to prevent derailments.” Id.
Having already determined that the regulation covered “train
speed” with respect to, among other things, “conditions posed
by grade crossings,” the Court saw no justification for delving
into the relative weight of the particular railroad safety
concerns the Secretary had in mind when promulgating the
regulation. Id.
        Our dissenting colleague counters that “[t]he nature of
the harm [addressed by a regulation] is … irrelevant in
determining „coverage.‟” (Dissent Op. at 6 n.7.) That,
however, denies that the purpose of a regulation bears on its
scope. We see nothing in Easterwood to support that
extraordinary claim, which is contrary to ordinary rules of
construction, in general, see Crandon v. United States, 494




                              24
U.S. 152, 158 (1990) (“In determining the meaning of [a]
statute, we look not only to the particular statutory language,
but to the design of the statute as a whole and to its object and
policy.”), and to well-settled rules for evaluating the
preemptive scope of federal statutes and regulations, in
particular, see Altria Grp., 555 U.S. at 76 (“Our inquiry into
the scope of a statute‟s pre-emptive effect is guided by the
rule that the purpose of Congress is the ultimate touchstone in
every pre-emption case.” (alteration and internal quotation
marks omitted)).
        An analogy to § 213.33 brings clarity to the matter.
Section 213.33 seeks to prevent harms associated with water
pooling on or around railroad tracks – harms such as icing
conditions, compromised track integrity, a greater likelihood
of dangerous obstructions occasioned by standing water, and
the like. An allegation that such conditions led to an accident
would be “covered” by § 213.33, regardless of whether the
actual harm caused by the alleged condition was great (e.g. a
train derailment) or relatively small (e.g. a slip and fall).
Whether the Secretary had train derailments foremost in mind
in promulgating § 213.33 is irrelevant, in other words,
because the regulation seeks generally to avoid harms caused
by an inadequately drained track.
        Related as it is to railroad safety – as it must be under
49 U.S.C. § 20106(a)(2) – § 213.33 does not seek to avoid the
harms associated with a railroad‟s discharge of storm water
onto an adjoining property. Whether the railroad disposes of
its runoff by channeling it to the public storm water system or
to its neighbor‟s property is irrelevant to the regulation‟s
railroad safety purpose. And given that the regulation and the
FRSA do not otherwise relieve railroads of their state law
duties to their neighbors we are reluctant to hold that § 213.33




                               25
pressed its understanding of § 213.33 at oral argument in the
District Court, saying that § 213.33 “is a drainage regulation”
that “essentially” tells railroads “to keep the water off the
tracks because it‟s dangerous to have water there, because it
will deteriorate the track.” (Supplemental App. at 133.) CSX
represented that “the intent of” the drainage regulation “is to
keep water away from the tracks, that‟s it.” (Supplemental
App. at 133.) It is accordingly difficult to conclude that
§ 213.33 “was … intended to prevent the harm plaintiff
suffered,” i.e., storm water trespass, or “that the defendant
railroad‟s duty of care” with respect to state storm water
trespass law was “subsumed by the regulation.” Cowden, 738
F. Supp. 2d at 938 (citations omitted).

        Finally, the position advocated by CSX – that because
§ 213.33 does not prohibit storm water discharge onto
adjoining property it therefore permits it – is troubling
because, as the Tenth Circuit said in Emerson v. Kansas City
Southern Railway Co., 503 F.3d 1126 (10th Cir. 2007), it “has
no obvious limit, and[,] if adopted,” could “lead to absurd
results.” Id. at 1132. Although Emerson interpreted a
question of preemption under the Interstate Commerce
Commission Termination Act (the “ICCTA”), the Tenth
Circuit‟s observations about the limitless and absurd results
occasioned by an expansive interpretation of an express
preemption provision are pertinent here, especially in light of
the FRSA‟s solicitude for state law. See Easterwood, 507
U.S. at 664 (noting that the FRSA‟s preemption provision
“displays considerable solicitude for state law”).



“covers” MD Mall‟s storm water discharge claims.




                              26
         The plaintiffs in Emerson alleged that, when the
defendant railroad replaced old, deteriorated rail ties, it
“regularly discarded” the ties in a nearby drainage ditch.
Emerson, 503 F.3d at 1128. The ditch consequently became
clogged, and the plaintiffs‟ property flooded. Id. The
railroad argued that subjecting it to liability for discarding old
rail ties would interfere with the ICCTA, which provides that
“remedies … with respect to regulation of rail transportation
are exclusive and preempt the remedies provided under
Federal or State law.” 49 U.S.C. § 10501(b). The court
rejected that argument, reasoning that “[i]f the ICCTA
preempts a claim stemming from improperly dumped railroad
ties, it is not a stretch to say that the Railroad could dispose of
a dilapidated engine in the middle of Main Street – a cheap
way to be rid of an unwanted rail car.” Emerson, 503 F.3d at
1132. “After all,” the court continued, “in this hypothetical
… the Railroad is merely disposing of unneeded railroad
equipment in a cost-conscious fashion.               Our holding
[rejecting the railroad‟s demand for sweeping preemption] …
interprets the ICCTA‟s preemption clause such that this
absurd result is avoided.” Id.

        In line with that persuasive reasoning, we must take a
sensible view of the FRSA‟s preemption provision, avoiding
the carte blanche ruling the railroad seeks. Longstanding
state tort and property laws exist for a reason, and the FRSA‟s
laudatory safety purpose should not be used as a cover to
casually cast them aside. See Easterwood, 507 U.S. at 668
(noting that preemption is improper when “the regulations
provide no affirmative indication of their effect on negligence
law”). For if CSX is free to negligently discharge its storm
water onto its neighbor‟s property, why should it not be
allowed to do so intentionally? It might simplify CSX‟s




                                27
duties under § 213.33 if it could simply install drainage pipes
that empty directly onto adjoining properties. Judging by the
testimony of CSX‟s road master, who stated that CSX‟s sole
concern when conducting the 2009 track refurbishment was
to ensure that storm water drained away from the track and
that it was not concerned about storm water discharging onto
the adjoining property, and given CSX‟s argument in the
District Court that § 213.33 allows a “railroad [to] do
whatever it needs to do to keep water away” from the railroad
track, including directing it onto a neighbor‟s property
(Supplemental App. at 131, 133), and further given the
attempt by the railroad in this case to build a spillway
emptying directly into the Mall‟s storm drain, CSX‟s position
is not far removed from that extreme. The constrained scope
given to the FRSA‟s preemption provision by the Supreme
Court in Easterwood cannot support such an understanding of
§ 213.33.12

      12
           The dissent characterizes our analysis as holding
that, “even if [the] FRSA clearly covers the conduct of a
railroad, such that the matter is preempted under Easterwood,
a claimant could, nonetheless, assert a claim for any resulting
or consequential injury that flows from the covered conduct.”
(Dissent Op. at 4.) Viewing our analysis in that way, the
dissent claims that we “gut … preemption analysis” and
“turn[] preemption on its head,” which “will bring about
needless confusion in our jurisprudence as to the proper
preemption analysis.” (Id. at 9.) Our opinion here does no
such thing. When a regulation covers (in that it substantially
subsumes) a plaintiff‟s state law claims, the FRSA applies,
and the suit will be preempted, assuming the Clarification
Amendment does not revive it. Our conclusion is that
§ 213.33, which requires railroads to maintain systems that




                              28
      Accordingly, we hold that the FRSA‟s express
preemption provision does not apply to MD Mall‟s claims.

       C.     Implied Conflict Preemption

       Even though the FRSA‟s express preemption provision
does not operate to extinguish MD Mall‟s claims, the present
lawsuit may be “pre-empted by implication because the state-
law principle [it] seek[s] to vindicate would conflict with
federal law.” Freightliner Corp. v. Myrick, 514 U.S. 280, 287
(1995).13 A court may find implied conflict pre-emption
“where it is impossible for a private party to comply with
both state and federal law,” Crosby v. Nat’l Foreign Trade


adequately drain water away from the track, does not
substantially subsume MD Mall‟s claims regarding water
discharge onto their property, not that MD Mall‟s claims may
proceed even though § 213.33 covers its claims.
       13
          The Court in Myrick rejected “the argument that [it]
need not reach the conflict pre-emption issue at all” because
“implied pre-emption cannot exist when Congress has chosen
to include an express pre-emption clause in a statute.”
Myrick, 514 U.S. at 287. At the same time, however, the
Court acknowledged that prior case law “supports an
inference that an express pre-emption clause forecloses
implied pre-emption; [though] it does not establish a rule.”
Id. at 289; see also id. at 288 (“The fact that an express
definition of the pre-emptive reach of a statute „implies‟ – i.e.,
supports a reasonable inference – that Congress did not intend
to pre-empt other matters does not mean that the express
clause entirely forecloses any possibility of implied pre-
emption.”).




                               29
Council, 530 U.S. 363, 373 (2000), or “where under the
circumstances of a particular case, the challenged state law
stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.” Id. (alterations
and internal quotation marks omitted). “What is a sufficient
obstacle is a matter of judgment, to be informed by examining
the federal statute [or regulation] as a whole and identifying
its purpose and intended effects … .” Id. “The mere fact of
„tension‟ between federal and state law is generally not
enough to establish an obstacle supporting preemption,
particularly when the state law involves the exercise of
traditional police power.” Madeira v. Affordable Housing
Found., Inc., 469 F.3d 219, 241 (2d Cir. 2006). Rather, “[t]he
principle is thoroughly established that the exercise by the
state of its police power, which would be valid if not
superseded by federal action, is superseded only where the
repugnance or conflict is so direct and positive that the two
acts cannot be reconciled or consistently stand together.”
Jones v. Rath Packing Co., 430 U.S. 519, 544 (1977)
(Rehnquist, J., concurring in part and dissenting in part)
(quoting Kelly v. Washington, 302 U.S. 1, 10 (1937)) (internal
quotation marks omitted).

        Conflict preemption thus embraces two distinct
situations. In the easier but rarer case, compliance with both
federal and state duties is simply impossible. See, e.g.,
Southland Corp. v. Keating, 465 U.S. 1 (1984) (state law
requiring judicial determination of certain claims preempted
by federal law requiring arbitration of those claims). In the
second and more common situation, compliance with both
laws is possible, yet state law poses an obstacle to the full
achievement of federal purposes.




                              30
       We can confidently conclude that this case is not of the
former variety. As CSX‟s engineers suggested when studying
the breakdown of the berm, the runoff problem is remediable,
though at some cost to the company, and it is therefore not
impossible for CSX to comply both with Pennsylvania storm
water trespass law and § 213.33. It would indeed be odd to
conclude that dual compliance is not possible given that CSX
successfully did just that for a number of decades without
difficulty.

       We are less confident, however, in saying that
Pennsylvania law does not, “under the circumstances of [this]
particular case, … stand[] as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.” Crosby, 530 U.S. at 373 (internal
quotation marks omitted). We do not know, because the
District Court made no findings of fact, whether and to what
extent, if any, Pennsylvania law stands as an obstacle to the
accomplishment and execution of § 213.33‟s railroad safety
purpose. Whether CSX can employ reasonable means to
comply with § 213.33‟s drainage requirements in this specific
case while also complying with Pennsylvania law regarding
storm water trespass is a question of fact. See Arizona v.
United States, __ U.S. __, 132 S.Ct. 2492, 2515 (2012)
(Scalia, J., concurring in part and dissenting in part) (arguing
that “[i]t is impossible” to “„determine whether, under the
circumstances of this particular case, [the State‟s] law stands
as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress,” without “a factual
record concerning the manner in which Arizona is
implementing” state law); James T. O‟Reilly, Federal
Preemption of State and Local Law: Legislation, Regulation




                              31
and Litigation 72 (2006) (stating that conflict preemption
analysis “requires … attention to the facts of each case”).

        It may be that, in the maintenance of the drainage
facilities that are under and immediately adjacent to the
portion of the track in question, CSX is unable, through
reasonable means, to prevent the flow of storm water onto
MD Mall‟s property. Again, since the railroad managed for
years to deal with its drainage without affecting the Mall, one
wonders how it can have become an unreasonable burden
now, but we have virtually no factual record on the issue and
so cannot definitively address it. The District Court is in a
better position to make the necessary factual inquiry, and we
will therefore remand for the development of an appropriate
record.14

      14
           Of course, any analysis of conflict preemption
requires an inquiry into the dictates of the state law in
question, for if state law does not prohibit a railroad from
discharging storm water onto an adjoining land under the
circumstances of this case, there is no conflict of law.
Because the District Court did not evaluate the underlying
merits of MD Mall‟s storm water trespass or negligence
claims, but rather avoided them on FRSA preemption
grounds, on remand we will allow the District Court to have a
first pass at those questions. Cf. Strozyk, 358 F.3d at 278
(reversing district court‟s preemption holding and “leav[ing]
the issue of whether or not the railroad met its duty of care,
and the relevant standard, for the District Court and the fact
finder on remand”).
        In addition, we will leave it to the District Court on
remand to address, if necessary, CSX‟s additional argument
that MD Mall‟s claims are preempted under the ICCTA, the




                              32
IV.    Conclusion

       For the foregoing reasons, we will vacate the District
Court‟s order granting summary judgment in CSX‟s favor,
and will remand the case for further proceedings consistent
with this opinion.




Interstate Commerce Commission Termination Act.
        Finally, given our invocation of the public importance
exception to the waiver doctrine to allow MD Mall to press its
new argument, MD Mall is estopped from arguing on remand
that § 213.33 imposes a duty on CSX to prevent storm water
discharge onto a neighboring property and that CSX failed to
comply with the supposed standard of care created by that
duty. Otherwise, we would be allowing MD Mall for the
third time to “assert[] a position inconsistent with one that [it]
[had] previously asserted in … a previous proceeding.”
Macfarlan, 675 F.3d at 272 (internal quotation marks
omitted).




                               33
    MD Mall Associates, LLC v. CSX Transportation

                       No. 12-1934


RENDELL, Circuit Judge, dissenting.

      I dissent from the majority’s opinion because I
believe its analysis veers from Supreme Court precedent in
the area of FRSA preemption. When the Mall commenced
this action in District Court complaining of CSX’s failure
to maintain its stormwater drainage, it urged that, applying
the ―coverage‖ test for preemption that the Supreme Court
established in CSX Transportation, Inc. v. Easterwood, 507
U.S. 658 (1993), its claims were clearly covered by 49
C.F.R. § 213.33. Section 213.33 provides:

       Each drainage or other water carrying
       facility under or immediately adjacent to the
       roadbed shall be maintained and kept free of
       obstruction, to accommodate expected water
       flow for the area concerned.

The Mall contended that, although the regulation covered
the subject matter of its state law claims, the claims were
not preempted because the Clarifying Amendment
applied.1 That Amendment provides that FRSA does not

1
   See, e.g., S.A. 98-99 (―Therefore, based upon the
clarifying amendment, claims alleging that the railroad
failed to comply with federal regulations are not preempted
by the FRSA.‖) (emphasis added), S.A. 110-13, S.A. 160-
61, S.A. 165 (―We are suing under a state law that is
preempt claims for damages if they allege a violation of a
―[f]ederal standard of care‖ or the railroad’s ―own plan,
rule, or standard that it created pursuant to a regulation or
order.‖ 49 U.S.C. § 20106(b)(1)(A)-(B).

      The District Court agreed with the Mall that § 213.33
covered the subject matter of the Mall’s state law claims,
but held that the Clarifying Amendment did not apply
because the Mall requested only injunctive relief—not
damages. Dissatisfied with this result, the Mall now comes
to our Court with a new approach for gaining an
injunction. It now contends that § 213.33 does ―not even
relate to, let alone cover, a railroad’s discharge of
stormwater onto an adjoining property.‖ (Appellant’s
Opening Br. at 11.) In other words, it argues the direct
opposite of what it pleaded and consistently urged below.

      In furtherance of this epiphany, the Mall urges that
CSX’s stormwater is not really a drainage issue that
§ 213.33 regulates. Rather, it contends that the stormwater
should be viewed as ―flow‖ or ―runoff‖ onto an adjoining
property. The majority has embraced this argument. I
conclude, however, that the Mall was right the first time:
§ 213.33 clearly covers the subject matter of its claims, and
under Easterwood, that is the only issue that matters. In
Easterwood, the Supreme Court framed the critical
preemption FRSA inquiry: does the regulation at issue
―substantially subsume the subject matter of the relevant
state law[?]‖ 507 U.S. at 664. Here, it does. The Mall’s
position on appeal ignores Easterwood’s command, and is


identical to federal regulations, they both say the same
thing . . . thou shall maintain your water.‖).



                             2
flawed from      a   physical,    analytical,   and   practical
standpoint.

      First, an examination of the physical layout of the
area reveals that the hillside leading to the Mall’s
property—the site of the alleged negligence—is
immediately adjacent to the roadbed.2 A picture tells a
thousand words, and the photo attached to this opinion
demonstrates the requisite proximity.3 Can there be any
doubt that the regulation ―covers‖ the drainage in this area?
I think not.

     Second, analytically, the Mall’s own characterization
of CSX’s misconduct belies its assertion that § 213.33 does
not cover CSX’s conduct. The Mall repeatedly and
consistently articulates CSX’s conduct as its failure to


2
  ―Roadbed‖ refers to ―the area under and adjacent to the
tracks.‖ Anderson v. Wis. Cent. Transp. Co., 327 F. Supp.
2d 969, 979 n.11 (E.D. Wis. 2004); accord Mo. Pac. R.R.
v. R.R. Comm’n of Tex., 948 F.2d 179, 182 (5th Cir. 1991).
―Immediately adjacent‖ is ten to fifteen feet. Anderson,
237 F. Supp. 2d at 980; Hadley v. Union Pacific R. Co.,
No. Civ.A. 02–1901, 2003 WL 21406183, at *2 (E.D. La.
June 16, 2003).
3
  Ditch lines abut and run parallel to the roadbed. When it
rains, water flows from the roadbed into the ditches. The
Mall contends that the drainage problem is the result of
CSX’s failure to maintain the ditch that borders the Mall’s
property. (A. 119 (Compl. ¶¶ 10-11).) Although the
parties do not provide the dimensions of the area, it is clear
that the ditch line is immediately adjacent to the roadbed.



                              3
manage the storm water on its property4—exactly what
§ 213.33 requires CSX to do. According to the Mall and
the majority, however, the fact that § 213.33 addresses the
very conduct that the Mall contests does not matter in
evaluating whether the regulation covers the subject matter
of the Mall’s claims. Rather, they contend that what
matters is the result—here, runoff onto the Mall’s property.
This position is captured in the Mall’s Complaint: the
continuing trespass claim is the result of CSX’s ―failing to
properly control its stormwater and maintain the CSX
Property so that its stormwater does not overflow onto
MacDade’s property.‖ (A. 123 (Compl. ¶ 30).) But, the
―flow‖ or ―runoff‖ onto the Mall’s property is not the
negligent act complained of, it is the result. If we were to
adopt the majority’s position, we would be holding that
even if FRSA clearly covers the conduct of a railroad, such
that the matter is preempted under Easterwood, a claimant
could, nonetheless, assert a claim for any resulting or
consequential injury that flows from the covered conduct.

4
  See Am. Compl. at A. 117, A. 121, A. 123; MD Mall’s
Mem. of Law in Supp. of MD Mall’s Motion for Summ. J.
at S.A. 71, S.A. 82, S.A. 90 (―CSX is clearly not
accommodating the expected water flow from its property,
as required under Section 213.33.‖), S.A. 91 (―CSX has
failed to properly control its water run-off from illegally
discharging on to [sic] the Mall Property.‖); MD Mall’s
Response in Opp. to CSX’s Motion for Summ. J. at S.A.
93-94 (―CSX should be managing its stormwater so that it
drains without causing damage to the Mall property.‖),
S.A. 99; Appellant’s Br. at 14, 29 (―[T]he stormwater
problem arose on [CSX’s] property and it controls its
property.‖); Appellant’s Reply Br. at 26.



                             4
This position renders preemption toothless and cannot
withstand analytic scrutiny. Simply put, that CSX’s failure
to comply with § 213.33 leads to a result that harms
another is not a basis to ignore the preemptive effect of the
regulation and permit a claim to be brought for that harm.5

      The Mall and the majority arrive at this conclusion by
focusing on what they believe to be the intent of the
regulation. The majority reasons: ―There is no indication
whatsoever that it was intended to address storm water
discharge onto a neighboring property, which is the harm
alleged by MD Mall.‖ See Majority Op. at 23 (emphasis
added). However, this approach is directly contrary to the
Supreme Court’s unequivocal instruction in Easterwood.
There, the Supreme Court stated that in determining the
preemptive effect of a regulation, the only question is
whether the regulation covers the subject matter. 507 U.S.
at 664. The Supreme Court explicitly stated that the intent
of the regulation was not to be considered: ―Section 4346
does not, however, call for an inquiry into the Secretary’s
purposes, but instead directs the courts to determine
whether regulations have been adopted that in fact cover
the subject matter of train speed.‖ Id. at 675. Here, if we
substituted ―storm water drainage adjacent to the roadbed‖

5
  If this were not the case, the Clarifying Amendment’s
allowance of claims for resulting harm would have been
unnecessary. The Clarifying Amendment applies to claims
for damages for actual harm, and the District Court
correctly held that injunctive relief is not allowed. That is
the province of the Secretary of Transportation, as I note
below.
6
  Referring to FRSA’s preemption provision.



                             5
for ―train speed‖, it is clear that the necessary ―coverage‖
exists. The Secretary has adopted a regulation that
explicitly addresses ―drainage . . . immediately adjacent to
the roadbed,‖ and the Mall is claiming that under state law,
CSX is negligent in how it handles its stormwater adjacent
to the roadbed. If we divert our attention from the
―coverage‖ of this regulation—of which there can be no
doubt here—we disregard the preemption analysis required
under Easterwood.7

7
  The majority’s reading of the analysis in Easterwood as
concerned with the harm that the regulation was intended
to prevent, see Majority Op. at 23 n.11, is incorrect.
Easterwood involved an inquiry into whether a very
specific regulation—setting train speed caps—should be
read expansively to cover, i.e. subsume, the subject matter
of train speed safety. The Supreme Court was determining
the scope of the regulation—not, as the majority posits,
―the harm sought to be avoided by the relevant regulation.‖
Majority Op. at 23 n.11. These are different inquiries. The
Supreme Court adopted an expansive view of the scope of
the regulation, based on an examination of what was
considered in adopting the regulation—overall safety, not
merely speed caps. 507 U.S. at 674-75. Interestingly,
however, the majority seems to agree with my view that
once the Supreme Court in Easterwood concluded that the
scope of the regulation was train speed safety, it held that it
did not need to delve into the harms that the regulations
were intended to avoid, namely derailments. See Majority
Op. at 23 n.11. The nature of the harm is, therefore,
irrelevant in determining ―coverage.‖            That leads
inexorably to the conclusion that, here, once we have
concluded that the scope of the regulation covers the



                              6
       The sparse case law discussing § 213.33 is consistent
with this reasoning. For example, in Rooney v. City of
Philadelphia, property owners brought suit against
AMTRAK alleging that runoff and drainage problems
resulted in flooding that ―caus[ed] extensive damages to
Plaintiffs’ properties and businesses.‖ 623 F. Supp. 2d
644, 648 (E.D. Pa. 2009). The court concluded that FRSA
regulations, including 49 C.F.R. § 213.33, governed,
among other things, ―[d]rainage requirements‖, and as a
result, ―cover[ed] the subject matter at issue.‖ Id. at 666.
In Black v. Baltimore & Ohio Railroad Co., plaintiffs
initiated suit against the railroad alleging that ―pumping
actions in low joints, lack of good crossties, ballast and
poor drainage‖ created muddy conditions that were
hazardous to trainmen. 398 N.E.2d 1361, 1362 (Ind. Ct.
App. 1980). The court held that although there was no
―specific regulation dealing with muddy conditions,‖
plaintiff’s claims were preempted because FRSA
regulations, including 49 C.F.R. § 213.33, covered the
―conditions that are alleged to have contributed to the‖
muddy conditions. Id. at 1363. Recently, in Miller v.


proper management of stormwater drainage adjacent to the
roadbed—which is what the Mall contends is the cause of
its problem—we should not consider the assertion that the
regulation was aimed at the integrity of the tracks, not
runoff. Had Easterwood been decided along the lines that
the Mall and the majority urge, the Court would have
concluded that because the speed cap was aimed at
preventing derailments, not collisions with automobiles at
grade crossings, the claim would not be preempted. As we
know, that reasoning was not only not adopted by the
Supreme Court—it was explicitly rejected.



                             7
SEPTA, the court, citing the clear mandate of Easterwood,
went so far as to conclude that a plaintiff’s claim was
preempted under § 213.33 where the railroad’s poorly
maintained railroad bridge obstructed the flow of a stream
and caused the stream to flood the plaintiff’s property. No.
1876 C.D.2011, 2013 WL 830715 (Pa. Commw. Ct. Mar.
7, 2013). Here, we have a much clearer case of
―coverage.‖ The Mall’s claims arise directly from an
alleged drainage problem that is immediately adjacent to
the tracks.8

      Further, the Mall’s and the majority’s position that a
court may dictate how a railroad handles its stormwater
drainage runs afoul of FRSA’s statutory scheme. FRSA
states that the Secretary of Transportation has the
―exclusive authority‖ to ―request an injunction for a
violation of a railroad safety regulation.‖ 49 U.S.C.

8
   The majority does not cite one case that addresses
§ 213.33. In discussing whether the regulation ―covers‖
the subject matter of the Mall’s claims, the majority cites
cases where the regulation ―merely touched upon‖ the
subject matter of a plaintiff’s claims or cases that did not
reach the issue in the fact pattern before this court. The
majority relies heavily on Emerson v. Kansas City
Southern Railway Company, 503 F.3d 1126 (10th Cir.
2007). That case is inapposite. There, the Tenth Circuit
Court of Appeals addressed ICCTA preemption—not
FRSA preemption—and analyzed whether the ―regulation
of rail transportation‖ covered the railroad’s discarding old
railroad ties into a drainage ditch. The issue of coverage is
much clearer here, as § 213.33 actually regulates drainage.




                             8
§ 20111(a)(2). The scope of the work to be done to
remedy the condition at the CSX roadbed, berm, and
adjacent hillside is the concern of the Secretary. The
proposition that a court should refrain from involving itself
in that subject matter is what preemption is all about. The
consistency, uniformity, and safety concerns, that underlie
these types of regulations should not be minimized or
ignored.

      Finally, from a practical perspective, there is no
reason to gut our preemption analysis to provide the Mall
with a remedy. To the extent the Mall is actually harmed,
the Mall could proceed under the Clarifying Amendment
with a request for damages for any property damage that it
suffers—as it did originally before limiting itself to
injunctive relief. The Mall could also bring the matter to
the attention of the Secretary of Transportation, requesting
that he issue an injunction that compels CSX to comply
with § 213.33.

      For the foregoing reasons I believe that the Mall’s
position, which the majority adopts, is flawed. The most
important reason, however, is that it runs afoul of
Easterwood’s holding that the key question is whether the
regulations ―substantially subsume the subject matter‖ of
the relevant state law. Here, § 213.33 does just that.
Easterwood is very clear, but the majority’s holding turns
preemption on its head and will bring about needless
confusion in our jurisprudence as to the proper preemption
analysis. I, therefore, respectfully dissent.




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