In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4213

MICHIGAN SOUTHERN RAILROAD COMPANY,
f/k/a Wabash & Western Railway Co.,

Plaintiff-Appellant,

v.

CITY OF KENDALLVILLE, INDIANA,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:98CV-50--William C. Lee, Chief Judge.

Argued May 11, 2001--Decided June 6, 2001



  Before FLAUM, Chief Judge, and BAUER and
EVANS, Circuit Judges.

  EVANS, Circuit Judge. The City of
Kendallville, a fairly small (2000
population: 9,616) town tucked in the
northeast corner of Indiana, wants the
Michigan Southern Railroad Company to cut
the weeds on its right-of-way. The
district court ordered the railroad to
cut some of the weeds, and it appeals.

  Kendallville has a municipal ordinance
regarding weed control. In its attempt to
enforce the ordinance against the
railroad on its 100-foot-wide right-of-
way which runs through the city, it filed
this action for a declaratory judgment
and a permanent injunction. The district
judge held that, because of the existence
of a federal regulation regarding
vegetation control on railroad rights-of-
way, the Kendallville ordinance was
preempted on the part of the right-of-way
which was, in the words of the
regulation, "immediately adjacent" to the
tracks, but not as to the remainder. The
parties stipulated that "immediately
adjacent" meant 15 feet from the center
of any track. The railroad contends that
the ordinance is preempted in its
entirety by the Federal Railroad Safety
Act (FRSA), 49 U.S.C. sec. 21101 et seq.,
and cannot be enforced.
  The Supremacy Clause to the United
States Constitution provides that "the
Laws of the United States . . . shall be
the supreme Law of the Land." Art. VI,
cl.2. The clause is well-understood to
provide Congress with the power to
preempt state law. Preemption occurs when
Congress expresses a clear intent to
occupy a particular field. When Congress
legislates comprehensively, and within
the scope of its constitutional
authority, its enactments control.
Louisiana Pub. Serv. Comm’n v. FCC, 476
U.S. 355 (1986). Nevertheless, we are to
analyze preemption issues cautiously in
the "interest of avoiding unintended
encroachment on the authority of states"
in areas traditionally governed by state
law. CSX Transp., Inc. v. Easterwood, 507
U.S. 658 (1993).

  The FRSA was enacted under Congress’
constitutional authority to regulate
interstate commerce with the intent of
providing uniform national regulation of
railroad operations. In the FRSA, the
Secretary of Transportation was given the
authority to "proscribe regulations and
issue orders for every area of railroad
safety." 49 U.S.C. sec. 20103(a).
Regulations are promulgated and enforced
by the Federal Railroad Administration.
Burlington N. & Santa Fe Ry. v. Doyle,
186 F.3d 790 (7th Cir. 1999).

  Congress expressly intended that the
FRSA would preempt all railroad safety
legislation with specific exceptions set
out in what is called the state
participation exemption. Exempted are
state laws, regulations, or orders which
govern an area in which the Secretary has
not issued regulations or orders or state
laws which are more strict than federal
regulations when stricter regulation is
necessary to address a specifically local
problem. However, the exempted state
regulations, laws, or orders must not
unreasonably burden interstate commerce.
49 U.S.C. sec. 20106.

  A specific federal regulation governs
vegetation on railroad property. 49
C.F.R. sec. 213.37 provides:

Vegetation on railroad property which is
on or immediately adjacent to roadbed
must be controlled so that it does not--
(a) Become a fire hazard to track-carrying
structures;

(b) Obstruct visibility of railroad signs
and signs and signals:

(1) Along the right-of-way, and

(2) At highway-rail crossings; (This
paragraph (b)(2) is applicable September
21, 1999.)

(c) Interfere with railroad employees
performing normal trackside duties;

(d) Prevent proper functioning of signal
and communication lines; or

(e) Prevent railroad employees from
visually inspecting moving equipment from
their normal duty stations.

 The issue before us, then, is whether
this regulation or any other aspect of
the FRSA preempts Kendallville’s
ordinance. One avenue by which
Kendallville might attempt to avoid
preemption is the state participation
exemption in sec. 20106. However,
Kendallville does not press this point,
perhaps noting that we are unlikely to
apply the state participation exception
to a municipal ordinance. See, e.g., CSX
Transp., Inc. v. City of Plymouth,
Michigan, 86 F.3d 626, 628 (6th Cir.
1996), in which the court found that as
"Plymouth is not a ’State,’ the
challenged Plymouth ordinance is not
within the FRSA’s preemption clause
exceptions."

  Rather, Kendallville’s argument is along
the following lines. Its ordinance is not
a safety ordinance. For that reason, it
does not matter that as a municipality,
it does not qualify for the state
participation exemption under the FRSA.
Kendallville says simply that its
ordinance is not preempted in the first
instance; therefore, there is no need to
rely on an exemption. The argument is
that because the federal vegetation
regulation, sec. 213.37, applies only to
the area "immediately adjacent" to the
tracks, not to the entire right-of-way,
preemption would apply only to that area
"immediately adjacent" to the tracks--
which in this case is stipulated to be 15
feet from the center of the tracks.
Because there is no federal regulation
which governs the remainder of the right-
of-way, Kendallville feels free to
enforce its ordinance on that portion of
the land. Perhaps the argument has at
least superficial appeal, but,
nevertheless, we cannot find that local
municipalities can enforce local weed
control ordinances on railroad rights-of-
way.

  Even though the city does not argue that
its ordinance is a safety provision--in
fact argues that it is not--the
railroad’s argument that the ordinance
has an impact on safety is not entirely
farfetched. The railroad says that if it
were required to maintain its right-of-
way to "front yard" standards set out in
the ordinance, it would be inviting to
trespassers--pedestrians, bicycles,
motorcycles, snowmobiles--all of which
present safety problems for the railroad.
In other words, having the right-of-way a
little less than inviting is a good
thing. Viewed from that angle, the
ordinance could affect safety. In City of
Plymouth the court rejected an argument
that an ordinance prohibiting trains from
obstructing a crossing for longer than 5
minutes was a measure designed to promote
the general welfare of its residents and
was not a safety measure. The court found
that the ordinance was, in fact, related
to railroad safety. We think the
existence of a vegetation control
regulation--that is, sec. 213.37--is
solid evidence that the Secretary thinks
vegetation control is a safety issue. See
also, e.g., Missouri Pacific R. v.
Railroad Comm’n of Texas, 833 F.2d 570
(5th Cir. 1987). We do not disagree.

  Congress’ occupation of the field of
railroad regulation is to ensure uniform
national standards. Specifically, 49
U.S.C. sec. 20106 states that "[l]aws,
regulations, and orders related to
railroad safety shall be nationally
uniform to the extent practicable." While
sec. 20106 allows the states some leeway
to impose certain safety requirements on
the railroads, even that leeway is
limited. Were we considering a state law
regarding vegetation control, in light of
sec. 213.37, we would need to consider
whether the state law met the exemptions
set out in sec. 20106, as was the issue
before the court in Missouri Pacific, for
instance. We cannot imagine that Congress
intended to give local municipalities
greater rights than the states.

  The Kendallville ordinance affirmatively
violates a requirement set out in sec.
20106, which as we said requires that the
state law, regulation, or order not place
an unreasonable burden on interstate
commerce. To uphold enforcement of the
ordinance would do just that. Even
putting sec. 20106 aside, upholding
municipal regulation of railroad right-
of-way would completely undermine the
goal of uniform national regulation.
Rather than 50 possible regulatory
schemes, there could be thousands, which
would be an obvious unreasonable burden
on interstate commerce.

  In sum, we think it unlikely that a
municipal ordinance qualifies for the
exemptions set out in sec. 20106. The
bottom line is, however, that this
municipal ordinance cannot be upheld
under any rationale because it poses an
unreasonable burden on interstate
commerce. The decision of the district
court is REVERSED and the case REMANDED for
the entry of judgment in favor of the
railroad.
