Petition for Writ of Mandamus Denied and Opinion filed December 28, 2018.




                                       In The

                     Fourteenth Court of Appeals

                                 NO. 14-18-01046-CV



          IN RE UNION PACIFIC RAILROAD COMPANY, Relator


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                               165th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2018-25150

                                    OPINION

      On December 5, 2018, relator Union Pacific Railroad Company filed a
petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see
also Tex. R. App. P. 52. In the petition, relator asks this court to compel the
Honorable Ursula A. Hall, presiding judge of the 165th District Court of Harris
County, to grant relator’s motion to dismiss and award relator its attorneys’ fees and
costs. Because relator has not shown the trial court abused its discretion in denying
the motion, we deny the petition for writ of mandamus.

                                   BACKGROUND

      Three apartment complexes (Plaintiffs) sued the Union Pacific Railroad, the
Harris County Flood Control District, and others for flood damages after the 2016
Tax Day flood and 2017 flooding associated with Hurricane Harvey. Plaintiffs
alleged, among other things, that when Union Pacific built a railroad bridge across
Greens Bayou it failed to restore Greens Bayou to its former state at the bridge
crossing and/or did not keep the crossing in repair, resulting in Greens Bayou
floodwaters backing up and contributing to the flooding of the apartment complexes.
Plaintiffs amended their petition to also allege that Union Pacific was negligent in
“failing to manage and maintain the vegetation, foliage, and debris that had
accumulated within its right of way under the rail bridge at the Greens Bayou
crossing.”

      Plaintiffs alleged that Union Pacific violated Texas Transportation Code
section 112.057, which states:

      (a) A railroad company may construct the company’s road across,
      along, or on any stream of water, water course, street, highway,
      turnpike, or canal where the route of the company’s railway intersects
      or touches the stream, water course, street, highway, turnpike, or canal.

      (b) The railroad company shall:

      (1) restore the stream, water course, street, highway, turnpike, or canal
      to its former state or to a state in which its usefulness is not
      unnecessarily impaired; and

      (2) keep the crossing in repair.
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Tex. Transp. Code Ann. § 112.057.

      Union Pacific filed a motion to dismiss pursuant to Texas Rule of Civil
Procedure 91a in which it alleged that Plaintiffs could not proceed with their suit
because federal law expressly preempts duties under state law relating to interstate
rail operations. Union Pacific claims the action is preempted by the Interstate
Commerce Commission Termination Act (ICCTA), 49 U.S.C. § 10501. The trial
court denied Union Pacific’s motion, and this petition followed.

                                       ANALYSIS

      With certain exceptions not applicable here, to obtain mandamus relief, a
relator must show both that the trial court clearly abused its discretion and that relator
has no adequate remedy at law, such as an appeal. In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).

      The Supreme Court of Texas has determined that mandamus is available to
review the denial of a Rule 91a motion to dismiss. See ConocoPhillips Co. v.
Koopmann, 547 S.W.3d 858, 880 (Tex. 2018), citing In re Essex Ins. Co., 450
S.W.3d 524, 526 (Tex. 2014) (reviewing denial of Rule 91a motion to dismiss on a
petition for writ of mandamus).

      Dismissal is appropriate under Rule 91a “if the allegations, taken as true,
together with inferences reasonably drawn from them, do not entitle the claimant to
the relief sought . . . [or] no reasonable person could believe the facts pleaded.” Tex.
R. Civ. P. 91a.1. Whether the dismissal standard is satisfied depends “solely on the
pleading of the cause of action.” Tex. R. Civ. P. 91a.6. We review a ruling on a Rule
91a motion de novo because the availability of a remedy under the facts alleged is a

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question of law and the rule’s factual-plausibility standard is akin to a legal-
sufficiency review. City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016). In
conducting our review, we must construe the pleadings liberally in favor of the
plaintiff, look to the pleader’s intent, and accept as true the factual allegations in the
pleadings to determine whether the cause of action has a basis in law or fact.
Weizhong Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 183–84 (Tex. App.—
Houston [14th Dist.] 2015, pet. denied).

      To determine whether dismissal under Rule 91a is required in this case, we
consider whether the pleadings, liberally construed according to the pleader’s intent,
allege facts that trigger federal preemption under the ICCTA. See Sanchez, 494
S.W.3d at 725. In their live pleading, Plaintiffs allege that Union Pacific violated
section 112.057 of the Texas Transportation Code by failing to “[(1)] restore the
stream water course to its former state or to a state in which its usefulness is not
unnecessarily impaired; and [(2)] keep the crossing in repair.” Plaintiffs further
allege that Union Pacific failed to “maintain the vegetation, foliage, debris, and other
obstructions” on the railroad property.

      Union Pacific asserted in its motion to dismiss that the ICCTA expressly
preempts Plaintiffs’ state-law claims as a matter of law. The ICCTA section entitled
“General Jurisdiction” states, in relevant part:

      (b) The jurisdiction of the [Surface Transportation] Board over—

      (1) transportation by rail carriers, and the remedies provided in this part
      with respect to rates, classifications, rules (including car service,
      interchange, and other operating rules), practices, routes, services, and
      facilities of such carriers; and

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       (2) the construction, acquisition, operation, abandonment, or
       discontinuance of spur, industrial, team, switching, or side tracks, or
       facilities, even if the tracks are located, or intended to be located,
       entirely in one State, is exclusive.

       Except as otherwise provided in this part, the remedies provided under
       this part with respect to regulation of rail transportation are exclusive
       and preempt the remedies provided under Federal or State law.
49 U.S.C. § 10501 (emphasis added).

       In Franks Investment Company v. Union Pacific Railroad Company, 593 F.3d
404 (5th Cir. 2010), the Fifth Circuit explained that there are two types of ICCTA
preemption: express and implied. The portion of section 10501 italicized above
defines the scope of express ICCTA preemption. “For a state court action to be
expressly preempted under the ICCTA, it must seek to regulate the operations of rail
transportation.” Id. at 413. To the extent remedies are provided under state or federal
laws that have the effect of regulating rail transportation, they are preempted. Id. at
410.

       Union Pacific notes that the ICCTA broadly defines the term transportation to
include a “property [or] facility . . . of any kind related to the movement of
passengers or property, or both, by rail” as well as services related to that movement.
49 U.S.C. § 10102(9). Because courts have held that bridges fall within this
definition, Union Pacific contends that Plaintiffs’ claims are expressly preempted.

       The scope of the ICCTA express preemption provision is not as broad as
Union Pacific contends. Of course, the Supremacy Clause of our Federal
Constitution allows Congress to displace state law. See U.S. Const. Art. VI, cl. 2.
Given the presumption that federal law does not supersede the States’ historic police

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powers unless it is Congress’s manifest purpose to do so, however, courts ordinarily
accept a plausible reading of an express preemption provision that disfavors
preemption. Franks, 593 F.3d at 407. As the United States Court of Appeals for the
Eleventh Circuit has explained, “Congress narrowly tailored the ICCTA pre-emption
provision to displace only ‘regulation,’ i.e., those state laws that may reasonably be
said to have the effect of ‘manag[ing]’ or ‘govern[ing]’ rail transportation, . . . while
permitting the continued application of laws having a more remote or incidental
effect on rail transportation.” Fla. E. Coast Ry. v. City of W. Palm Beach, 266 F.3d
1324, 1331 (11th Cir. 2001); see also Burlington N. & Santa Fe Ry. v. City of
Houston, 171 S.W.3d 240, 247 (Tex. App.—Houston [14th Dist.] 2005, no pet.)
(“state laws that constitute regulation of a railroad are preempted”). The Surface
Transportation Board (STB)—the federal administrative agency charged with
regulating rail transportation under the ICCTA—takes a similarly narrow view of
the express preemption provision’s scope. According to the STB, this provision
categorically preempts only (1) state and local permitting or preclearance
requirements that could be used to deny a railroad the ability to conduct certain
operations or proceed with STB-authorized activities; and (2) state and local
regulation of matters directly regulated by the STB, such as construction, operation,
and abandonment of rail lines, railroad rates and service, and mergers and
acquisitions. See Franks, 593 F.3d at 410–11.

      Applying these tests and the Rule 91a standard to Plaintiffs’ petition, we
cannot conclude as a matter of law that Plaintiffs’ claims would have the effect of
managing or governing “the operations of rail transportation.” Franks, 593 F.3d at
413. The principles of Texas law that Plaintiffs contend require Union Pacific to

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restore and manage debris in the bayou under its bridge do not, on their face, require
reconstruction of the bridge or govern the operation of trains moving passengers or
property across the bridge.1 Nor do the bayou underneath the bridge or the debris
that allegedly accumulated there fall within the ICCTA’s definition of
“transportation.” See 49 U.S.C. § 10102(9); Emerson v. Kansas City So. Ry., 503
F.3d 1126, 1130 (10th Cir. 2007) (holding railroad’s alleged failure to act to maintain
drainage ditch adjacent to track was not an instrumentality related to movement of
passengers or property or a service related to that movement, but rather a tort
committed by a landowner who happens to be a railroad company). Finally, Union
Pacific has not explained what “remedies” the ICCTA provides with respect to the
matters at issue in this suit that should be deemed “exclusive and preempt the
remedies” Plaintiffs seek under Texas law. 49 U.S.C. § 10501. For each of these
reasons, the ICCTA does not expressly preempt Plaintiffs’ state-law claims.

       Union Pacific does point out that the Federal Railroad Administration (FRA)
has a regulation concerning drainage under the roadbed, which requires railroads to
maintain the drainage and keep it “free of obstruction, to accommodate expected
water flow for the area concerned.” 49 C.F.R. § 213.33. But the FRA is a separate


       1
          Unlike in other cases cited by Union Pacific, Plaintiffs’ allegations do not challenge
“where and when railroads placed their railcars on their transportation lines or how they
constructed those lines.” Griffioen v. Cedar Rapids & Iowa City Ry., 914 N.W.2d 273, 287 (Iowa
2018). In Griffioen, the court held the ICCTA preempted claims that a railroad was liable for
flooding exacerbated when it positioned cars filled with rock on railroad bridges and failed to
“build, maintain, inspect, and keep in good repair” bridges that collapsed. Id. at 288. And in
Waubay Lake Farmers Association v. BNSF Railway, the court held on summary judgment that
the ICCTA preempted a suit seeking to impose a duty on a railroad to cease operations and rebuild
its track to incorporate a larger drainage culvert. No. 12-4179-RAL, 2014 WL 4287086, at *6
(D.S.D. Aug. 28, 2014),
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federal agency that regulates rail safety under the Federal Railroad Safety Act
(FRSA), while the STB regulates rail transportation under the ICCTA. See Boston
& Me. Corp. v. STB, 364 F.3d 318, 321 (D.C. Cir. 2004) (“primary jurisdiction over
railroad safety belongs to the FRA, not the STB”). The FRSA has its own preemption
provision and savings clause, see 49 U.S.C. § 20106, and Union Pacific does not
argue that the FRSA preempts Plaintiffs’ claims (which do not rely on the FRA
regulation). In any event, the ICCTA does not expressly preempt negligence claims
based on an alleged failure to comply with FRA safety regulations. See Tyrrell v.
Norfolk So. Ry., 248 F.3d 517, 524 (6th Cir. 2001) (holding that because state
regulation “has a connection with rail safety, . . . FRSA [rather than ICCTA]
provides the applicable standard for assessing federal preemption”); Smith v. CSX
Transp., Inc., No. 3:13 CV 2649, 2014 WL 3732622, at *2 (N.D. Ohio July 25,
2014).

       As to implied preemption under the ICCTA, the Fifth Circuit has adopted a
“fact-based test,” noting that state-law actions can be preempted as applied if they
have the effect of unreasonably burdening or interfering with rail transportation.
Franks, 593 F.3d at 414. In some of the cases Union Pacific cites, courts applied
aspects of this test to developed factual records. E.g., A & W Props., Inc. v. Kansas
City S. Ry., 200 S.W.3d 342, 350 (Tex. App.—Dallas 2006, pet. denied).2 Such a

       2
          In A & W, the court concluded on summary judgment that an adjacent landowner’s suit
seeking to require a railroad to widen a culvert and bridge “would interfere with [railroad]
operations” and were preempted. 200 S.W.3d at 350. The A & W court contrasted those facts with
the Rushing case, in which an adjacent landowner’s suit concerning flooding caused by a berm
built to contain noise from railroad switching activities was held not directly related to those
activities and therefore was not preempted. Rushing v. Kan. City So. Ry., 194 F. Supp. 2d 493, 501
(S.D. Miss. 2001). From the face of Plaintiffs’ petition, this case appears to be like Rushing, as
Plaintiffs do not seek to alter Union Pacific’s bridge.
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fact-based review is inappropriate when reviewing a trial court’s ruling on a Rule
91a motion to dismiss. See Zheng, 468 S.W.3d at 184. Union Pacific did not argue
in its Rule 91a motion that implied ICCTA preemption forecloses Plaintiffs’ claims,
and we express no view on that issue.

      Union Pacific has not shown it is entitled to mandamus relief. We therefore
deny the petition for writ of mandamus.



                                        PER CURIAM

Panel consists of Justices Busby, Brown, and Wise.




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