                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT



                               No. 98-20694
                             Summary Calendar


THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY,

                                               Plaintiff-Appellant,

                                  versus

BEN W. “BUD” CHILDERS, AS FORT BEND COUNTY ATTORNEY; MARK MILLIS;
THE MILLIS GROUP, INC.; ROYAL LAKES LIMITED; MICHAEL D. ROZELL, BUD
O’SHIELES, GRADY PRESTAGE, ANDY MEYERS, BOB LUTTS, INDIVIDUALLY AND
AS COUNTY COMMISSIONERS OF FORT BEND COUNTY,
                                         Defendants-Appellees.



              Appeal from the United States District Court
                   for the Southern District of Texas
                              (H-98-CV-653)


                              August 9, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Burlington Northern and Santa Fe Railroad Company (“BNSF”)

appeals     the   district   court’s   dismissal   of   its   “as   applied”

challenge to the Texas Neighborhood Roads Statute and its federal

takings, Commerce Clause, procedural due process, state takings,

and inverse condemnation claims for lack of jurisdiction, as well

as the district court’s denial of its request for a preliminary

injunction. Appellees have filed a motion to dismiss the appeal as

moot.       We affirm, essentially for the reasons stated in the

        *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
district court opinion, the trial court’s denial of a preliminary

injunction based on the claims it found to be ripe that are not now

moot.       Furthermore, we vacate the district court’s dismissal of

claims that it found were not ripe and remand to the district court

to    make a     new    determination    on   whether   injunctive    relief    is

warranted, based on BNSF’s claims previously held not to be ripe,

now that the ripeness concerns with the Neighborhood Roads Statute

proceedings are no longer an issue.

                                          I

          BNSF owns and operates a mainline track and a passing track

that run parallel to FM Road 2759 and FM Road 720 in Fort Bend

County, Texas.         The passing track facilitates “meets” and “passes”

of trains on the mainline track.

          In late 1997, Fort Bend County initiated proceedings pursuant

to Texas’s Neighborhood Roads Statute to open a public grade

crossing that would bisect the parallel tracks and provide access

to    a    development,    which   was   previously     served   by   a   private

crossing. The Neighborhood Roads Statute mandates a public hearing

in which the county commissioners court hears evidence from parties

that would be affected by the proposed road.              See TEX. TRANSP. CODE

ANN. § 251.053.        The commissioners court then determines whether an

order should issue declaring the establishment of a new road.                  See

id.       Then, if a new road is ordered, a jury of property owners

assesses damages incident to the opening of the road to be paid to

the property owners affected.            See id.




                                          2
      In this case, the county commissioners court ordered that a

road be established across BNSF’s parallel tracks, despite BNSF’s

contentions that (1) the opening of a public crossing would trigger

federal and state laws requiring BNSF to uncouple and separate long

train units occupying the sidetrack for more than five minutes, and

(2) a feasible alternative crossing was available. Pursuant to the

Neighborhood Roads Statute, the commissioners selected a “jury of

view” to lay out the exact location of the proposed road and to

assess damages incidental to the opening of the road as a public

road.

                                        II

      BNSF then filed suit in federal district court against various

officials of Fort Bend County and the real estate developers

(collectively,      “the    officials”),         alleging      violations    of     the

Commerce Clause, the Due Process Clause, and the Takings Clause of

the   United    States     Constitution,         via   42    U.S.C.   §   1983,    and

violations of the federal doctrine of “prior public use.”                          BNSF

also brought state-law causes of action for inverse condemnation,

violations     of   the    Texas    Constitution’s          Takings   Clause,   civil

conspiracy,     violations     of    the       Texas   Open    Meetings     Act,   and

violations of the Texas doctrine of “paramount importance.”                        BNSF

further claimed that the officials acted without authorization from

the Surface Transportation Board and that Texas’s Neighborhood

Roads Statute violates both the state and federal constitutions.

      BNSF then filed a motion for a preliminary injunction which

requested that the district court (1) enjoin further proceedings


                                           3
pursuant   to   the   Neighborhood    Roads   Statute;   (2)   enjoin   the

officials from interfering in any way with the BNSF’s property

rights in the passing track area; and (3) enjoin the officials from

interfering in any way with BNSF’s constitutional right to operate

trains in interstate commerce.       In response, the officials filed a

motion to dismiss for want of subject matter jurisdiction.

     The district court considered together BNSF’s motion for

injunctive relief and the officials’ motion to dismiss.          The court

dismissed BNSF’s “as applied” challenge to the Neighborhood Roads

Statute and the federal takings, procedural due process, Commerce

Clause, state takings, and inverse condemnation claims on the

grounds that they were not ripe for consideration.              The court

reasoned that Fort Bend County had not reached a final decision

regarding the proposed public crossing because all of the steps of

the Neighborhood Roads Statute had not been completed; as a result,

there had been no taking, so those claims were not yet ripe.            The

court found BNSF’s remaining claims -- BNSF’s facial challenge to

the Neighborhood Roads Statute, the ICC Termination Act preemption

claim, the Texas Open Meetings claim, the conspiracy claim, and the

claim of taking for a private purpose -- to be ripe, so it

considered the motion for preliminary injunction based on those

claims.    After careful analysis, the court determined that BNSF

failed to meet the burden entitling it to a preliminary injunction

based on the ripe claims.

                                     III




                                      4
     After BNSF filed its appeal, the officials filed a motion to

dismiss the appeal as moot because they subsequently had abandoned

the Neighborhood Roads Statute proceedings and initiated eminent

domain proceedings to secure the crossing.               That is, the officials

argue that this appeal is moot because the proceedings under the

Neighborhood   Roads     Statute    which      BNSF     sought    to     enjoin     have

stopped. BNSF counters that in the court below it sought more than

just to have the Neighborhood Roads Statute proceedings enjoined;

it sought to enjoin the establishment, by whatever means, of the

public crossing, and that this fight is still alive.                    Furthermore,

argues BNSF, the officials have abandoned only the compensation

portion of the Neighborhood Roads Statute proceeding, but the

commission’s order establishing the road remains in effect.                         BNSF

seeks to have this court reject the officials’ motion to dismiss

the appeal and to have this court decide on appeal that their claim

is ripe for consideration and that a preliminary injunction should

issue because they have demonstrated a substantial likelihood of

success   in   proving    that     the       proposed    road     is    illegal      and

unconstitutional, irreparable harm will result if an injunction

does not issue, and a balancing of equities favors BNSF.

                                         IV

     The district court did not consider the merits of granting a

preliminary injunction based on several of BNSF’s contentions

because   it   determined    that    those       claims    were        not   ripe   for

consideration.    However, due to the officials’ abandonment of the

Neighborhood     Roads   Statute     proceeding,         the     district     court’s


                                         5
ripeness concerns regarding the Neighborhood Roads Statute are no

longer    an    issue.      Nonetheless,      there   is   no    district    court

disposition addressing whether a preliminary injunction should

issue, based on the claims that the district court found were not

ripe, for this court to review.               Thus, we vacate the district

court’s dismissal of claims on ripeness grounds and remand to the

district court to make a new determination on whether injunctive

relief is warranted, based on BNSF’s claims previously held not to

be ripe, now that the ripeness concerns with the Neighborhood Roads

Statute proceedings are no longer an issue.             We recognize that the

district court will not have to consider all of BNSF’s dismissed

claims because some of those claims have been mooted by the

abandonment of the Neighborhood Roads Statute proceeding.

     Regarding the trial court’s denial of a preliminary injunction

based    on    claims    that   the   trial   court   found     to   be   ripe   for

consideration -- BNSF’s facial challenge to the Neighborhood Roads

Statute, the ICC Termination Act preemption claim, the Texas Open

Meetings claim, the conspiracy claim, and the claim for taking for

a private purpose -- we affirm, essentially for the reasons stated

in the district court opinion, the trial court’s denial of the

preliminary injunction based on the ICC Termination Act preemption

claim, the conspiracy claim, and the claim for taking for a private

purpose; we do not pass judgment on the other two claims found to

be ripe -- the facial challenge to the Neighborhood Roads Statute

and the Texas Open Meetings claim -- because those claims are now

moot.


                                         6
VACATED IN PART, AFFIRMED IN PART, AND REMANDED IN PART.




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