     Case: 13-30669      Document: 00512711594         Page: 1    Date Filed: 07/25/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                      No. 13-30669                              July 25, 2014
                                                                               Lyle W. Cayce
                                                                                    Clerk

R.T. FAULK, III, COREY FARMS, L.L.C.; FAULK FARMS,
INCORPORATED; JOANNE HODGES; RIVER VALLEY PROPERTIES;
MCHENRY FARMS, L.L.C.; SHERMAN SHAW; T. P. GODWIN; WILLIAM
G. NADLER; MCHENRY REALTY PARTNERSHIP

                                                 Plaintiffs-Appellees
v.

UNION PACIFIC RAILROAD COMPANY

                                                 Defendant-Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:07-CV-554


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       This case concerns a dispute over the proposed closing of several private
railroad crossings in Louisiana.          The district court determined that the
railroads have a servitude, rather than fee-simple ownership, over the land. It
then certified to this court the question of whether a Louisiana statute


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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preventing the railroads from closing the private crossings violates the
Louisiana Constitution’s prohibition on takings. We conclude that this
question should be certified to the Louisiana Supreme Court.
      I.        Procedural History
      This dispute arose after the Defendant, Union Pacific Railroad Company
(“Union Pacific), proposed closing several private railroad crossings, and did in
fact close one, in Ouachita Parish, Louisiana. The Plaintiffs are the owners or
lessees of farmland that is adjacent to these ten crossings. There is some
disagreement between the parties over whether the Plaintiffs can access their
farmland absent use of these crossings.
      In 2008, the Louisiana legislature passed a statute regarding railroads’
ability to close and remove private crossings, 2008 La. Acts 530, § 1, LA. REV.
STAT. ANN. § 48:394 (2008) (“2008 Act”). The statute prohibited railroads from
closing or removing any private crossing unless the railroad gave 180 days’
advance notice and convinced the Louisiana Public Safety Commission
(“LPSC”) that the action was “necessary for safety and in the best interest of
the public.” Id. In 2010, we held that federal law preempts state regulation of
private crossings that “unreasonably burden[s] or interfere[s] with rail
transportation.” Franks Inv. Co. v. Union Pac. R.R. Co., 593 F.3d 404, 414 (5th
Cir. 2010) (en banc). The Louisiana legislature subsequently amended the
2008 Act to replace the safety/best-interests standard with a prohibition on
closing or removing a private crossing unless the railroad company can
convince the LPSC that the specific crossing at issue “unreasonably burdens
or substantially interferes with rail transportation.”               2010 La. Acts 858,
amending LA. REV. STAT. ANN. § 48:394(C) (2010) (“the Act”). 1 In doing so, the


      1   The statute, in its current form, reads as follows:
                      A. (1) Any railroad company operating in this state which desires
              to close or remove a private crossing shall, no less than one hundred
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Act attempts to balance the rights of the railroad company and the owners of
private crossings by ensuring that the railroad companies do not unilaterally
close private crossings unless doing so is necessary for the railroads to continue
operating free from substantial burdens. See id.
      The Plaintiffs sued Union Pacific in 2007 in Louisiana state court
seeking a declaration of their rights to use the crossings and injunctions
preventing Union Pacific from closing or removing certain existing private


            eighty days prior to the proposed closing or removal, provide a written
            request by registered or certified mail to the Louisiana Public Service
            Commission and to the owner or owners of record of the private crossing
            traversed by the rail line. The written request shall state the matter in
            which such private railroad crossing unreasonably burdens or
            substantially interferes with rail transportation.
                     (2) The Louisiana Public Service Commission shall publish the
             written request from the railroad company in the commission’s official
             bulletin for no less than twenty-five days.
                     B. No private crossing shall be closed or removed by any railroad
             company until after a public hearing by the Louisiana Public Service
             Commission at which parties in interest have had an opportunity to be
             heard. Notice of the time and place of the hearing shall be published in
             the official journal of the parish and the commission’s official bulletin
             and at least fifteen days shall elapse between the publication and the
             date of the hearing. In addition to notice by publication, and at least
             ten days prior to the hearing, a good faith attempt to notify the owner
             or owners of record of the property where the private crossing is located
             shall be made by the commission by sending an official notice by
             registered or certified mail of the time and place of the hearing to the
             address or addresses indicated in the mortgage and conveyance records
             of the parish. The public hearing shall be held not less than sixty days
             after receipt of request of the railroad company as provided in
             Subsection A of this Section.
                     C. If, after such public hearing, the commission determines that
             the private railroad crossing unreasonably burdens or substantially
             interferes with rail transportation, the commission shall publish in the
             official journal of the parish where such crossing is located and in the
             commission’s official bulletin a notice stating the manner in which such
             closure or removal shall be made and the date of such.
                     D. The provisions of this Section shall not apply when a private
             landowner or landowners and a railroad company enter into a
             consensual or negotiated written agreement or agreements to close a
             private railroad crossing.
      LA. REV. STAT. § 48:394.
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crossings.    After removing the case to federal court, Union Pacific
counterclaimed, seeking a declaration of its rights to eliminate the crossings.
After the 2008 Act was passed, the Plaintiffs asserted it as a defense to Union
Pacific’s counterclaims. Union Pacific responded that the Act could not be
applied because it would effect an unconstitutional taking of Union Pacific’s
property without a public purpose in violation of Article I, Section 4 of the
Louisiana Constitution.    The district court granted summary judgment to
Union Pacific against the claims made by Plaintiffs who were only lessees
respecting closures that occurred before the passage of the Act, but denied
Union Pacific summary judgment on all other claims. Faulk v. Union Pac. R.R.
Co., CIV.A. 07-0554, 2010 WL 3325704, at *4–6 (W.D. La. Aug. 23, 2010)
vacated and remanded, 449 F. App’x 357 (5th Cir. 2011) (unpublished). The
district court thereafter granted summary judgment for the remaining
Plaintiffs. Id. at *8–9. In doing so, it recognized that the railroads had some
possessory rights affected by the Act, but rejected, on rehearing, Union Pacific’s
argument that the Act effects a taking in violation of the Louisiana
Constitution. Faulk v. Union Pac. R.R. Co., CIV.A. 07-0554, 2011 WL 777905,
at *13 (W.D. La. Mar. 1, 2011). Union Pacific was enjoined from closing
existing crossings without first complying with the Act. Id. at *18.
      After making this determination, the district court granted Union
Pacific’s motion under 28 U.S.C. § 1292(b), and this court permitted Union
Pacific to file an interlocutory appeal to our court.        We permitted the
interlocutory appeal, but reversed and remanded for further proceedings
because the district court had decided the constitutional question without first
deciding the parties’ respective property rights regarding the crossings and the
rights-of-way. Faulk v. Union Pac. R.R. Co., 449 F. App’x 357, 364 (5th Cir.
2011) (unpublished). On remand, the district court concluded that Union
Pacific has real property interests in the nature of servitudes, rather than fee
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simple. Faulk v. Union Pac. R.R. Co., CIV.A. 07-0554, 2013 WL 1193069, at
*5–7 (W.D. La. Mar. 22, 2013). The district court did not decide the state law
question of whether such servitudes give Union Pacific the right to exclude
Plaintiffs from the pre-existing crossings. In a footnote, the district court once
again rejected Union Pacific’s argument that the Act’s prohibition against
removal or closure of the private crossings on the rights-of-way would effect an
unconstitutional taking. Id. at *6 n.6.
       After the district court granted partial summary judgment in favor of the
Plaintiffs, Union Pacific moved for interlocutory appeal. The district court once
again granted the motion for interlocutory appeal, certifying the following
questions of law to this court: (1) “If Union Pacific does not have ownership
rights to the private railroad crossings, does it have standing 2 to challenge
Louisiana Revised Statute 48:394 (“the Act”)? (2) If so, is the Act constitutional
under the United States and Louisiana Constitutions?” 3                   We granted the
interlocutory appeal.
       II.     The Certified Order
       We begin by noting that, despite the parties limiting their briefing to the
questions certified by the district court, it is the certified order, not merely the
questions in a vacuum, over which we have jurisdiction on this interlocutory
appeal. See Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 398
(5th Cir. 2010) (en banc); see also Yamaha Motor Corp. v. Calhoun, 516 U.S.


       2  The parties failed to brief this standing question, but we must address it due to its
jurisdictional dimensions. Okpalobi v. Foster, 244 F.3d 405, 430 (5th Cir. 2001). We conclude
that Union Pacific’s ownership of a servitude constitutes a sufficient right to confer standing
in this case. See Polk v. Ball, 149 F.2d 263 (5th Cir. 1945); see also Parkway Dev. Corp. v.
City of Shreveport, 342 So. 2d 151, 153–54 & n.2 (La. 1977).

       3  Despite the reference to the United States Constitution in this question, Union
Pacific has briefed only the Louisiana constitutional question. We thus deem the question
under the federal constitution waived. See Bridas SAPIC v. Gov’t of Turkm., 345 F.3d 347,
356 n.7 (5th Cir. 2003).
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199, 205 (1996).      “Section 1292(b) limits this court’s jurisdiction over
interlocutory appeals to reviewing questions that are material to the lower
court’s certified order.” Castellanos-Contreras, 622 F.3d at 398 (citation and
internal quotation marks omitted).         Therefore, we are not limited to the
controlling question, especially where the issues outside the question provide
grounds for reversal of the entire order. Id.; see also Ducre v. Executive Officers
of Halter Marine, Inc., 752 F.2d 976, 983 n.16 (5th Cir. 1985).
      Included in the order is the determination that Union Pacific’s rights are
those of a servitude, rather than fee simple ownership.         Faulk, 2013 WL
1193069, at *5–7. Union Pacific did not brief this point beyond a footnote
stating that this conclusion was in error. However, at oral argument, Union
Pacific asserted that its arguments were unaffected by the nature of the right
(servitude or fee) and thus was willing to have us address the validity of the
title determinations as they stand.        We thus AFFIRM the district court’s
conclusion that Union Pacific’s rights are those of a servitude, not a fee simple.
      III.   Louisiana Takings Claim
      The State of Louisiana intervened in this case to defend the
constitutionality of the Act. It argues to our court that the following question
should be certified to the Louisiana Supreme Court: “Whether the application
of LA. REV. STAT. § 48:394 to the properties in this case amounts to an
unconstitutional taking of private property without a public purpose, in
violation of Art. I, Section 4 of the Louisiana Constitution.” The other parties
agree that certification is appropriate.
      We have previously held that where the case “presents a significant
question of Louisiana law . . . for which we find no controlling precedent,” it is
proper to certify the question to the Supreme Court of Louisiana. Sincox v.
Blackwell, 672 F.2d 423, 423 (5th Cir. 1982). Louisiana Supreme Court Rule
XII provides for certification to that court when there are state law questions
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determinative of issues before us, and “there are no clear controlling
precedents in the decisions of the supreme court.” § 1. We have noted that
that “certification is not a panacea for resolution of those complex or difficult
state law questions which have not been answered by the highest court of the
state . . . [but] certification may be advisable where important state interests
are at stake and the state courts have not provided clear guidance on how to
proceed.” In re Katrina Canal Breaches Litig., 613 F.3d 504, 509 (5th Cir. 2010)
(citation and internal quotation marks omitted) (internal alteration omitted).
      The Supreme Court has previously stated that “[w]hen anticipatory
relief is sought in federal court against a state statute, respect for the place of
the States in our federal system calls for close consideration of that core
question.” Arizonans for Official English v. Arizona, 520 U.S. 43, 75 (1997).
The benefit of certification is to allow federal courts “faced with a novel state-
law question to put the question directly to the State’s highest court, reducing
the delay, cutting the cost, and increasing the assurance of gaining an
authoritative response.” Id. at 76. The Court further stated that “[w]arnings
against premature adjudication of constitutional questions bear heightened
attention when a federal court is asked to invalidate a State’s law, for the
federal tribunal risks friction-generating error.” Id. at 79.
      This   appeal    involves   only   questions   of     state   law,   and   the
constitutionality of the state statute has not been addressed by any state
appellate court. Louisiana has an extensive regulatory framework regarding
railroads in general, see LA. REV. STAT. §§ 45:321–621, and railroad crossings
in particular, see LA. REV. STAT. §§ 32:168–75, 33:3701–05, 48:386–94. The Act
specifically establishes administrative procedures for the closure of private
crossings.   Furthermore, we have previously held that the care of grade
crossings is “peculiarly within the police power of the states.” New Orleans &
Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 333 (5th Cir. 2008) (quoting Lehigh
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Valley R.R. Co. v. Bd. of Pub. Util. Comm’rs, 278 U.S. 24, 35 (1928)). An
anticipatory determination on the constitutionality of this statute could
unsettle the complex and well-developed regulatory framework put into place
by the Louisiana legislature, as well as cause friction in how railroad rights
are adjudicated between state and federal court. See Arizonans for Official
English, 520 U.S. at 75.        Therefore, we conclude that certification is
appropriate to allow the highest state court to consider in the first instance
whether its own statute should be invalidated as violative of its own
constitution.
      IV. CERTIFICATION FROM THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF THE
STATE OF LOUISIANA, PURSUANT TO LA. REV. STAT. § 13:72.1 AND
RULE 12 OF THE RULES OF THE LOUISIANA SUPREME COURT
      It appears to the United States Court of Appeals for the Fifth Circuit
that the above-styled case in this court involves a question or proposition of the
law of the State of Louisiana, which will be determinative of all or most issues
in this cause, which is beyond the province of this court to resolve, and for
which there appears to be no clear, controlling precedent in the decisions of the
Supreme Court of Louisiana. The answer to this question will resolve all or a
substantial part of this case. This court certifies the following question of law
to the Supreme Court of Louisiana for rendition of a judgment or opinion
concerning such question of Louisiana law, such case being on appeal to this
court from the United States District Court for the Western District of
Louisiana.
STYLE OF THE CASE
      The style of the case is R. T. FAULK, III; COREY FARMS, L.L.C.;
FAULK FARMS, INCORPORATED; JOANNE HODGES; RIVER VALLEY
PROPERTIES; MCHENRY FARMS, L.L.C.; SHERMAN SHAW; T. P.
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                                  No. 13-30669
GODWIN; WILLIAM G. NADLER; MCHENRY REALTY PARTNERSHIP,
Plaintiffs – Appellees, v. UNION PACIFIC RAILROAD COMPANY,
Defendant – Appellant.
STATEMENT OF THE FACTS
      A complete statement of the facts in this case, the nature of the cause,
and the circumstances out of which the questions or propositions of law arise
is set forth in full above and therefore are not repeated in this certification.
QUESTION FOR THE SUPREME COURT OF LOUISIANA
      For the above stated reasons, we hereby certify the following
determinative question of Louisiana law to the Supreme Court of Louisiana:
“Whether the application of LA. REV. STAT. § 48:394 to any of the properties in
this case amounts to an unconstitutional taking of private property without a
public purpose, in violation of Art. I, Section 4 of the Louisiana Constitution.”
To the extent the Court deems appropriate, we include within this question the
related issue of to what extent a railroad enjoys exclusive rights in any of the
existing crossings, particularly against the servient estate. We disclaim any
intent to limit the Court to the precise question asked.




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