                                                                              FILED
                                                                          Oct 10 2017, 9:46 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.                                        John C. Duffey
Attorney General of Indiana                                Heather L. Emenhiser
                                                           Stuart & Branigin LLP
Larry D. Allen                                             Lafayette, Indiana
Deputy Attorney General
                                                           ATTORNEYS FOR AMICUS CURIAE,
Indianapolis, Indiana
                                                           ASSOCIATION OF AMERICAN
                                                           RAILROADS
                                                           Harold Abrahamson
                                                           Jonathan Halm
                                                           Abrahamson, Reed, & Bilse
                                                           Hammond, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          October 10, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           02A03-1607-IF-1524
        v.                                                 Appeal from the Allen Superior
                                                           Court
Norfolk Southern Railway                                   The Honorable Wendy Davis,
Company,                                                   Judge;
                                                           The Honorable David M. Zent,
Appellee-Plaintiff
                                                           Magistrate.
                                                           Trial Court Cause No.
                                                           02D05-1503-IF-2039,
                                                           02D06-1505-IF-2988,
                                                           02D05-1505-IF-3070,
                                                           02D06-1505-IF-3071,
                                                           02D04-1505-IF-3082,
                                                           02D04-1505-IF-3084,


Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017                       Page 1 of 17
                                                                 02D06-1505-IF-3183,
                                                                 02D06-1505-IF-3246,
                                                                 02D05-1505-IF-3248,
                                                                 02D04-1505-IF-3251
                                                                 02D04-1505-IF-3255,
                                                                 02D06-1505-IF-3262,
                                                                 02D04-1505-IF-3263,
                                                                 02D05-1505-IF-3264,
                                                                 02D05-1505-IF-3312,
                                                                 02D04-1505-IF-3362,
                                                                 02D06-1505-IF-3363,
                                                                 02D06-1506-IF-6379,
                                                                 02D04-1506-IF-6383,
                                                                 02D04-1508-IF-9742,
                                                                 02D06-1508-IF-9744,
                                                                 02D06-1511-IF-13718,
                                                                 02D04-1512-IF-15577




      May, Judge.


[1]   The State of Indiana (“State”) appeals the trial court’s grant of summary

      judgment in favor of Norfolk Southern Railway Company (“Norfolk”). 1 The

      State argues the trial court erred as a matter of law when it determined

      Indiana’s Blocked Crossing Statute, Indiana Code section 8-6-7.5-1 (“Indiana

      Blocked Crossing Statute”), is preempted by the Interstate Commerce

      Commission Termination Act (“ICCTA”) and the Federal Railroad Safety Act

      (“FRSA”). We reverse and remand. 2




      1
          The Association of American Railroads (“AAR”) appeared as Amicus Curiae.
      2
        We held oral argument in this case on August 29, 2017, in the Indiana Court of Appeals Courtroom. We
      thank counsel for their able advocacy.

      Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017                 Page 2 of 17
                             Facts and Procedural History
[2]   The facts here are not disputed. In 2015, the State issued twenty-three citations

      to Norfolk for violations of Indiana’s blocked-crossing statute, Indiana Code

      section 8-6-7.5-1 (“Indiana’s Blocked Crossing Statute”). Norfolk does not

      dispute “that the trains in these causes blocked the crossings for more than ten

      minutes on each occasion.” (App. Vol. II at 7.) Nevertheless, Norfolk

      challenged the citations.


[3]   On September 21, 2015, Norfolk filed a motion for summary judgment, arguing

      Indiana’s Blocked-Crossing Statute is preempted by the ICCTA and the FRSA.

      The State responded, and the trial court held a hearing on the matter on

      January 12, 2016. On June 8, 2016, the trial court granted Norfolk’s motion for

      summary judgment after concluding “I.C. 8-6-7.5-1 is preempted by the

      Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. §

      10101, et seq., and the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. §

      20101, et seq.” (Id. at 9.)


[4]   In its order granting summary judgment in favor of Norfolk, the trial court

      outlined some of the relevant facts which led to the citations:


              1. Trains block grade crossings in excess of ten minutes for
              various reasons in the performance of Norfolk Southerns’ [sic]
              railroad operations in New Haven.


              2. For example, Norfolk Southern performs switching operations
              in connection with its service to various industries. Performing
              switching maneuvers typically at Rose Avenue and Hartzell

      Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017   Page 3 of 17
        Road, which are directly east of the East Wayne Yard. Safe
        coupling of cars during switching operations must be completed
        at slow speeds. Coupling cars at anything but a slow speed may
        cause cars to derail. Switching operations typically take longer
        than ten minutes to perform. Norfolk Southern could not
        perform these switching operations without, at times, blocking
        grade crossing [sic] in excess of ten minutes.


        3. Further, inbound trains may be held while waiting for entry
        into the East Wayne Yard and to allow other train traffic to pass.
        This may result in grade crossing blockages in excess of ten
        minutes. Trains may also stop as the result of a mechanical
        defect with the train, resulting in grade crossing blockages in
        excess of the [sic] minutes.


        4. Doyle Road is the first siding track east of the East Wayne
        Yard. Trains park on the siding to allow other train traffic to
        pass on the mainline. This may result in grade crossing
        blockages on Doyle Road in excess of ten minutes.


        5. To attempt to limit the time a train may obstruct a grade
        crossing to ten minutes Norfolk Southern would be required to
        run trains at a faster speed so as to clear crossings more quickly,
        to run shorter (and, therefore, more numerous) trains so they can
        be stopped without obstructing grade crossings, or to break or
        “cut” the train to open the grade crossing for motor vehicle
        traffic.


        6. Norfolk Southern can only open grade crossings for motor
        vehicle traffic (during the time the train is stopped) by breaking or
        “cutting” the train into two or more segments (train segments),
        depending on the length of the train. Cutting a train requires a
        temporary interruption of the train’s braking system.




Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017   Page 4 of 17
              7. The crew must reassemble these train segments and perform
              an airbrake safety test required by federal regulations before the
              train can be moved - an airbrake test that can only be performed
              once the train is completely reassembled. Reassembling the train
              and performing the federally mandated airbrake test is a
              procedure that requires more than ten minutes to complete.


              8. Cutting and re-coupling train segments requires train crew
              members to dismount from the locomotive engine, walk to where
              the cut is to be made, and operate equipment necessary to
              perform the coupling or un-coupling operation. Crew members
              also have to set a sufficient number of handbrakes on that part of
              the train uncoupled from the engine(s). To complete the
              coupling process, employees must go between the ends of the
              cars and re-attach the air hoses that are part of [the] train’s
              braking system.


              9. Requiring employees to cut and reassemble train segments
              each time a train may block a grade crossing for more than ten
              minutes would also delay Norfolk Southern’s train operations/
              traffic because of the time involved in performing these
              maneuvers.


      (Id. at 7-8.)



                                  Discussion and Decision
                                Summary Judgment Standard of Review

[5]   We review decisions on summary judgment de novo and apply the same

      standard applied by the trial court. AM Gen. LLC v. Armour, 46 N.E.3d 436, 439

      (Ind. 2015). The movant must show the designated evidence raises no genuine



      Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017   Page 5 of 17
      issue of material fact and the moving party is entitled to judgment as a matter of

      law. Id.


[6]   Here, the trial court made findings and conclusions in support of its entry of

      summary judgment. We are not bound by such findings and conclusions, but

      they aid our review by providing reasons for the decision. Allen Gray Ltd. P’ship

      IV v. Mumford, 44 N.E.3d 1255, 1256 (Ind. Ct. App. 2015). We will affirm a

      summary judgment on any theory or basis found in the record. Id.


                                    Indiana’s Blocked-Crossing Statute

[7]   Indiana’s Blocked-Crossing Statute states:


              It shall be unlawful for a railroad corporation to permit any train,
              railroad car or engine to obstruct public travel at a railroad-
              highway grade crossing for a period in excess of ten (10) minutes,
              except where such train, railroad car or engine cannot be moved
              by reason of circumstances over which the railroad corporation
              has no control.


      Ind. Code § 8-6-7.5-1. In State v. CSX Transp., Inc., we interpreted Indiana’s

      Blocked-Crossing Statute:


              The statute clearly states that it is illegal to obstruct public travel,
              not to simply obstruct the railroad crossing. The plain meaning
              of this language indicates that there must be evidence that the
              public attempted to travel across the railroad crossing before a
              violation of this statute occurs. Moreover, this court has
              previously held that the elements of a violation of this statutory
              provision are: 1) obstruction of public travel, 2) at a railroad
              crossing, 3) for more than ten minutes. Norfolk & Western Railway


      Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017    Page 6 of 17
              Co. v. State, 180 Ind.App. 185, 387 N.E.2d 1343, 1344 (1979), reh.
              denied, trans. denied.


      673 N.E.2d 517, 519 (Ind. Ct. App. 1996).


[8]   Here, the trial court concluded Indiana’s Blocked Crossing Statute is preempted

      by the ICCTA and the FRSA.                  This issue of federal preemption of Indiana’s

      Blocked-Crossing Statute is one of first impression. Our Indiana Supreme

      Court recently reiterated our standard of review when a party argues

      preemption:


              It has “long been settled” that a preemption analysis begins with
              the presumption that federal statutes do not preempt state law.
              Bond v. United States, ––– U.S. ––––, 134 S. Ct. 2077, 2088, 189
              L.Ed.2d 1 (2014). The presumption against preemption comes
              from two concepts “central to the constitutional design” - the
              Supremacy Clause and federalism. See Arizona v. United States,
              567 U.S. 387, 132 S. Ct. 2492, 2500, 183 L.Ed.2d 351 (2012).
              Although the Supremacy Clause 3 gives Congress the power to
              preempt state law, federalism requires that we do not easily find
              preemption. See id. at 2501. In fact, we find preemption only if it
              is “the clear and manifest purpose of Congress.” Id.
              [Appellants], then, must show that clear and manifest purpose in
              order to overcome the presumption against preemption. Russ.
              Media Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 309 (7th Cir.
              2010).




      3
       “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall
      be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
      Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.

      Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017                      Page 7 of 17
              Congress can preempt state law in three ways: express
              preemption, field preemption, and conflict preemption. Basileh v.
              Alghusain, 912 N.E.2d 814, 818 (Ind. 2009). Express preemption
              exists when Congress states the statute’s preemptive effect. Id.
              Field preemption applies when Congress creates “exclusive
              federal regulation of the area.” Id. And conflict preemption
              preempts a state law that conflicts with federal law. Arizona, 132
              S. Ct. at 2501.


      Kennedy Tank & Mfg. Co., Inc. v. Emmert Indus. Corp., 67 N.E.3d 1025, 1028 (Ind.

      2017) (footnote in original).


[9]   Further, the United States Supreme Court has described when federal law

      preempts state law under the Supremacy Clause:


              First, Congress can define explicitly the extent to which its
              enactments pre-empt state law. Pre-emption fundamentally is a
              question of congressional intent, and when Congress has made
              its intent known through explicit statutory language, the courts’
              task is an easy one.


              Second, in the absence of explicit statutory language, state law is
              pre-empted where it regulates conduct in a field that Congress
              intended the Federal Government to occupy exclusively. Such
              an intent may be inferred from a “scheme of federal regulation ...
              so pervasive as to make reasonable the inference that Congress
              left no room for the States to supplement it,” or where an Act of
              Congress “touch[es] a field in which the federal interest is so
              dominant that the federal system will be assumed to preclude
              enforcement of state laws on the same subject.” Although this
              Court has not hesitated to draw an inference of field pre-emption
              where it is supported by the federal statutory and regulatory
              schemes, it has emphasized: “Where . . . the field which
              Congress is said to have pre-empted” includes areas that have

      Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017   Page 8 of 17
                “been traditionally occupied by the States,” congressional intent
                to supersede state laws must be “‘clear and manifest.’”


                Finally, state law is pre-empted to the extent that it actually
                conflicts with federal law. Thus, the Court has found pre-
                emption where it is impossible for a private party to comply with
                both state and federal requirements, or where state law “stands as
                an obstacle to the accomplishment and execution of the full
                purposes and objectives of Congress.”


       English v. Gen. Elec. Co., 496 U.S. 72, 78-9 (1990) (internal citations omitted,

       ellipses in original). 4


                                                         ICCTA

[10]   The trial court found Indiana’s Blocked-Crossing Statute is preempted by the

       ICCTA, which was enacted in 1996 “to standardize all economic regulation

       (and deregulation) of rail transportation under Federal law, without the

       optional delegation of administrative authority to State agencies to enforce

       Federal standards, as provided in the relevant provisions of the Staggers Rail

       Act.” H.R. Rep. No. 104–311 (reprinted in 1995 U.S.C.C.A.N. 793, 807).


[11]   The ICCTA’s preemption clause clarifies the role of the Surface Transportation

       Board (“STB”), the relevant governing body of the ICCTA:




       4
         Throughout the proceedings, most notably during the oral argument, Norfolk maintained Indiana’s
       Blocked-Crossing Statute is expressly preempted by the ICCTA and the FRSA, and it has insisted on
       interpreting the trial court’s order as an “all or nothing” declaration of express preemption. Therefore, we
       will not examine conflict preemption or field preemption.

       Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017                        Page 9 of 17
                (b) The jurisdiction of the [STB] over


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


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


[12]   When a statute contains an express preemption clause, “the task of statutory

       construction must in the first instance focus on the plain wording of the clause,

       which necessarily contains the best evidence of Congress’ preemptive intent.”

       CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). The State argues the

       ICCTA does not expressly preempt Indiana’s Blocked-Crossing Statute:

       “Although the ICCTA provides remedies for violations of various rules, there

       are not remedies for obstruction of traffic. . . . ICCTA only accounts for the

       explicit remedies found within the act . . . [Therefore,] the silence as to

       obstruction of traffic bars facial preemption.” (Br. of Appellant at 15.) We

       agree.

       Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017    Page 10 of 17
[13]   The State relies on Adrian & Blissfield R. Co. v. Village of Blissfield, 550 F.3d 533

       (6th Cir. 2008), in which the Sixth Circuit Court of Appeals explained the

       STB’s test for determining preemption:


               First, state actions are “categorically” or “facially” preempted
               where they “would directly conflict with exclusive federal
               regulation of railroads.” . . . CSX Transp., Inc., STB Fin. Docket
               No. 34662, 2005 WL 1024490, at *3 (S.T.B. May 3, 2005)).
               Courts and the STB have recognized “two broad categories of
               state and local actions” that are categorically preempted
               regardless of the context of the action: (1) “any form of state or
               local permitting or preclearance that, by its nature, could be used
               to deny a railroad the ability to conduct some part of its
               operations or to proceed with activities that the Board has
               authorized” and (2) “state or local regulation of matters directly
               regulated by the Board-such as the construction, operation, and
               abandonment of rail lines; railroad mergers, line acquisitions,
               and other forms of consolidation; and railroad rates and service.”
               CSX Transp., 2005 WL 1024490, at *2 (citations and footnote
               omitted); see also [New Orleans & Gulf Coast Ry. Co. v.] Barrois, 533
               F.3d [321,] 332 [(5th Cir. 2008)]; Emerson [v. Kansas City S. Ry.
               Co.], 503 F.3d [1126] 1130 [(10th Cir. 2007)]; Green Mountain
               [R.R. Corp. v. Vermont], 404 F.3d [638,] 642 [2d Cir. 2005)].
               Because these categories of state regulation are “per se
               unreasonable interference with interstate commerce,” “the
               preemption analysis is addressed not to the reasonableness of the
               particular state or local action, but rather to the act of regulation
               itself.” CSX Transp., 2005 WL 1024490, at *3; see also Barrois,
               533 F.3d at 332; Green Mountain, 404 F.3d at 644. Second, those
               state actions that do not fall into one of these categories may be
               preempted as applied: “For state or local actions that are not
               facially preempted, the section 10501(b) preemption analysis
               requires a factual assessment of whether that action would have
               the effect of preventing or unreasonably interfering with railroad


       Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017   Page 11 of 17
        transportation.” Barrois, 533 F.3d at 332 (quoting CSX Transp.,
        2005 WL 1024490, at *3).


        As the Fifth Circuit recently noted, “the STB has clearly
        identified where routine crossing disputes, such as the one at
        issue in this case, fall in this scheme of ICCTA preemption.” Id.
        “Routine crossing disputes,” “despite the fact that they touch the
        tracks in some literal sense,” “are not typically preempted.” Id.
        at 332-33 (noting “that ‘[t]hese crossing disputes are typically
        resolved in state courts’” (quoting Maumee & W. R.R. Corp. &
        RMW Ventures, LLC, STB Fin. Docket No. 34354, 2004 WL
        395835, at *2 (S.T.B. Mar. 3, 2004))). We agree that “[t]he
        STB’s position with respect to these routine crossing cases is
        consistent with the historical, pre-ICCTA rule governing these
        crossing disputes.” Id. at 333. As the [United States] Supreme
        Court explained,


             The care of grade crossings is peculiarly within the
             police power of the states, and, if it is seriously
             contended that the cost of this grade crossing is such as
             to interfere with or impair economical management of
             the railroad, this should be made clear. It was certainly
             not intended by the Transportation Act to take from the
             states or to thrust upon the Interstate Commerce
             Commission investigation into parochial matters like
             this, unless by reason of their effect on economical
             management and service, their general bearing is clear.


        Id. (quoting Lehigh Valley R.R. Co. v. Bd. of Pub. Util. Comm’rs, 278
        U.S. 24, 35, 49 S. Ct. 69, 73 L.Ed. 161 (1928)).


Id. at 540.




Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017   Page 12 of 17
[14]   Further, in Fayus Enterprises v. BNSF Ry. Co., 602 F.3d 444 (D.C. Cir. 2010),

       reh’g en banc denied, cert. denied, 562 U.S. 1108 (Dec. 13, 2010), the D.C. Circuit

       Court of Appeals reasoned, when examining another provision under the

       ICCTA:


               Plaintiffs correctly point out that the ICCTA does not preempt all
               state and local regulations. The circuits appear generally, for
               example, to find preemption of environmental regulations, or
               similar exercises of police powers relating to public health or safety, only
               when the state regulations are either discriminatory or unduly
               burdensome. See, e.g., Adrian & Blissfield R.R. Co. v. Village of
               Blissfield, 550 F.3d 533, 539 (6th Cir. 2008); Green Mountain R.R.
               Corp. v. Vermont, 404 F.3d 638, 643-44 (2d Cir. 2005) (including
               risk of permitting delay in assessment of burden); N.Y.
               Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252-55 (3d
               Cir. 2007); Friberg v. Kansas City S. Ry. Co., 267 F.3d 439 (5th Cir.
               2001) (finding common law nuisance preempted); Fla. E. Coast
               Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th Cir.
               2001); cf. City of Auburn v. U.S. Gov’t, 154 F.3d 1025, 1030 (9th
               Cir. 1998) (seeming to apply a broader preemption rule). Several
               of the cases, in addressing these environmental regulations, note
               that the ICCTA “does not preempt only explicit economic
               regulation.” N.Y. Susquehanna & W. Ry. Corp., 500 F.3d at 252;
               see also City of Auburn, 154 F.3d at 1030 (similar). By implication,
               such cases recognize that the core of ICCTA preemption is
               “economic regulation,” which we take to refer to regulation of
               the relationship before us here, that of shippers and carriers.


       Id. at 451 (emphasis added).


[15]   The ICCTA does not include language regarding regulation of a blocked

       crossing for traffic regulation purposes. Without State action, railroads would

       be allowed to block major thoroughfares for an infinite amount of time because

       Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017      Page 13 of 17
       the federal regulation is silent. Based on the holdings in Fayus and Blissfield, and

       cases cited therein as support, we hold Indiana’s Blocked-Crossing Statute is

       not expressly preempted by the ICCTA, not only because there is no specific

       language in the ICCTA preempting the regulation of railroad crossings, but also

       because Indiana’s Blocked-Crossing Statute is a permissible exercise of the

       State’s “police powers relating to public health or safety.” Fayus, 602 F.3d at

       451.


                                                        FRSA

[16]   The trial court found Indiana’s Blocked-Crossing Statute is also preempted by

       the FRSA. The State directs us to the FRSA preemption clause, which states:


               (a) National uniformity of regulation -


                        (1) Laws, regulations, and orders related to railway safety
                        and laws, regulations, and orders related to railroad
                        security shall be nationally uniform to the extent
                        practicable.


                        (2) A State may adopt or continue in force a law,
                        regulation, or order related to railroad safety or security
                        until the Secretary of Transportation (with respect to
                        railroad safety matters), or the Secretary of Homeland
                        Security (with respect to railroad security matters),
                        prescribes a regulation or issues an order covering the
                        subject matter of the State requirement. A State may
                        adopt or continue in force an additional or more stringent
                        law, regulation, or order related to railroad safety or
                        security when the law, regulation, or order -



       Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017   Page 14 of 17
                                 (A) is necessary to eliminate or reduce an essentially
                                 local safety or security hazard;


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


                                 (C) does not unreasonably burden interstate
                                 commerce.


       49 U.S.C. § 20106. 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.


[17]   In State v. Wheeling & Lake Erie Ry. Co., 743 N.E.2d 513 (Ohio Ct. App. 2000),

       the Ohio Court of Appeals held Ohio’s blocked-crossing law was not expressly

       preempted by the FRSA. The language of the statute is similar to that of the

       Indiana Blocked-Crossing Statute:


               No railroad company shall obstruct, or permit or cause to be
               obstructed a public street, road, or highway, by permitting a
               railroad car, locomotive, or other obstruction to remain upon or
               across it for longer than five minutes, to the hindrance or
               inconvenience of travelers or a person passing along or upon
               such street, road, or highway. No railroad company shall fail, at
               the end of each five minute period of obstruction of a public
               street, road, or highway, to cause such railroad car, locomotive,
               or other obstruction to be removed for sufficient time, not less
               than three minutes, to allow the passage of persons and vehicles
               waiting to cross.


               This section does not apply to obstruction of a public street, road,
               or highway by a continuously moving through train or caused by

       Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017   Page 15 of 17
               circumstances wholly beyond the control of the railroad
               company, but does apply to other obstructions, including without
               limitation those caused by stopped trains and trains engaged in
               switching, loading, or unloading operations.


       Id. at 514 (quoting Ohio Revised Code 5589.21). The Ohio Appeals Court

       interpreted the clause in the FRSA, 49 U.S.C. § 20106, which states “[a] State

       may adopt or continue in force a law, regulation, or order related to railroad

       safety until the Secretary of Transportation prescribes a regulation or issues an

       order covering the subject manner of the State requirement,” and concluded the

       FRSA did not preempt the Ohio law because “[n]either the trial court nor

       appellee has indicated any federal regulation governing this issue, let alone

       demonstrated the ‘clear and manifest purpose of Congress’ to preempt local

       regulations on how long a stopped train can block an intersection.” Wheeling,

       743 N.E.2d at 514.


[18]   We adopt the holding of Wheeling because of the similarity between the state

       statutes in question. As we concluded regarding the ICCTA supra, there is no

       language in the FRSA which explicitly pre-empts Indiana’s Blocked Crossing

       Statute.



                                                 Conclusion
[19]   We hold Indiana’s Blocked Crossing Statute is not expressly pre-empted by the

       ICCTA or the FRSA. In this narrow holding, we do not address conflict or

       field pre-emption because Norfolk refused to discuss their application. See supra


       Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017   Page 16 of 17
       n.4. Accordingly, we reverse and remand for proceedings consistent with this

       opinion.


[20]   Reversed and remanded.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017   Page 17 of 17
