Petition for Writ of Certiorari — City of Edmond, Oklahoma, et al., Petitioners v. BNSF Railway Company

NO. 21-_____

In the

Supreme Court of the United States

CITY OF EDMOND, ET AL.,

Petitioners,

v.

BNSF RAILWAY COMPANY,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN M. O’CONNOR

ATTORNEY GENERAL

MITHUN MANSINGHANI

SOLICITOR GENERAL

COUNSEL OF RECORD

BRYAN CLEVELAND

DEPUTY SOLICITOR GENERAL

OFFICE OF THE OKLAHOMA

ATTORNEY GENERAL

313 N.E. TWENTY-FIRST STREET

OKLAHOMA CITY, OK 73105

(405) 522-4392

MITHUN.MANSINGHANI@OAG.OK.GOV

MARCH 23, 2022

COUNSEL FOR PETITIONERS

i

QUESTIONS PRESENTED

When trains block traffic at road intersections,

they impose numerous safety risks. Oklahoma enacted

a statute prohibiting trains from stopping where rails

cross streets or highways for more than ten minutes,

subject to certain exceptions. Despite the safety concerns caused by blocked crossings, over which state

authority is preserved by the Federal Railroad Safety

Act (“FRSA”), 49 U.S.C. § 20106(a)(2), the Tenth Circuit

found Oklahoma’s statute preempted under the Interstate Commerce Commission Termination Act, 49

U.S.C. § 10501(b) (“ICCTA”).

The questions presented are:

1. In determining whether a state law affecting

railroads is preempted, may a court look only to the

ICCTA, as the Fifth and Tenth Circuits have held, or

must courts also consider all other relevant federal

railroad statutes (such as the FRSA), as the Second,

Sixth, Eighth, Ninth and D.C. Circuits have held?

2. Does state authority over rail safety, expressly

preserved by the FRSA, include public safety at rail

crossings, as the Eighth Circuit holds with agreement

from the relevant federal agency, or is it limited to

state regulation of the safety of participants in the

railroad system, as the Tenth Circuit held?

ii

PARTIES TO THE PROCEEDINGS

Petitioners

City of Edmond; City of Davis; Commissioners

Todd Hiett, Bob Anthony, and Dana Murphy, in their

respective official capacities at the Oklahoma Corporation Commission; and John M. O’Connor, in

his official capacity as Oklahoma Attorney General, are

petitioners here and were defendants-appellants

below.

Respondent

BNSF Railway Company is respondent here and

was plaintiff-appellee below.

 General O’Connor is substituted for his predecessor in the

same public office. See S. Ct. R. 35.3.

iii

LIST OF PROCEEDINGS

U.S. Circuit Court of Appeals for the Tenth Circuit

Nos. 21-6000, 21-6005

BNSF Railway Co. v. City of Edmond, et al.

Date of Final Opinion: January 11, 2022

_________________

U.S. District Court for the Western District of Oklahoma

No. CIV-19-769

BNSF Railway Co. v. City of Edmond, et al.

Date of Judgment and Sentencing: November 30, 2020

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDINGS ......................... ii

LIST OF PROCEEDINGS ......................................... iii

TABLE OF AUTHORITIES ...................................... vi

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 2

STATUTORY PROVISIONS INVOLVED ................. 2

STATEMENT OF THE CASE .................................... 4

A. Statutory Background...................................... 5

B. Facts and Procedural History. ......................... 8

REASONS FOR GRANTING THE PETITION ....... 11

I.

CERTIORARI IS WARRANTED TO RESOLVE A

5-2 SPLIT AMONG FEDERAL COURTS OF

APPEALS ON THE SCOPE OF ICCTA PREEMPTION .......................................................... 12

II. C ERTIORARI I S A LSO W ARRANTED TO

RESOLVE THE CIRCUIT SPLIT CREATED BY

THE DECISION BELOW REGARDING THE

SCOPE OF RAIL SAFETY COVERED BY THE

FRSA............................................................... 18

III. T HIS IS AN E XCELLENT V EHICLE TO

RESOLVE AN IMPORTANT ISSUE ....................... 22

CONCLUSION.......................................................... 24

v

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion of the United States Court of Appeals for

the Tenth Circuit (January 11, 2022) ...................... 1a

Memorandum Opinion and Order of the United

States District Court for the Western District

of Oklahoma (November 30, 2020) ......................... 14a

vi

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Am. Trucking Ass’ns, Inc. v. United States,

242 F.Supp. 597 (D.D.C. 1965) ..................... 6, 12

Bos. & Maine Corp. v. Surface Transp. Bd.,

364 F.3d 318 (D.C. Cir. 2004) ........................... 15

Clark v. Martinez,

543 U.S. 371 (2005) .......................................... 17

CSX Transp., Inc. v. Easterwood,

507 U.S. 658 (1993) ............................................ 19

Elam v. Kansas City S. Ry. Co.,

635 F.3d 796 (5th Cir. 2011) ............................. 22

Friberg v. Kan. City S. Ry. Co.,

267 F.3d 439 (5th Cir. 2001) ....................... 10, 16

Iowa, Chicago & E. R.R. Corp.

v. Washington Cty., Iowa,

384 F.3d 557 (8th Cir. 2004) ..................... passim

Island Park, LLC v. CSX Transp.,

559 F.3d 96 (2d Cir. 2009). ................................ 15

People v. Burlington N. Santa Fe R.R.,

148 Cal. Rptr. 3d 243 (2012) ............................. 19

Swinomish Indian Tribal Cmty. v. BNSF Ry.

Co., 951 F.3d 1142 (9th Cir. 2020) ..................... 14

Transportation Div. of the Int’l Ass’n of Sheet

Metal, Air, Rail, & Transportation

Workers v. Fed. R.R. Admin.,

988 F.3d 1170 (9th Cir. 2021) ........................... 23

Tyrrell v. Norfolk S. Ry. Co.,

248 F.3d 517 (6th Cir. 2001) ............................. 14

vii

TABLE OF AUTHORITIES – Continued

Page

United States v. Santos,

553 U.S. 507 (2008) ............................................. 17

FEDERAL STATUTES

28 U.S.C. § 1254 .......................................................... 2

49 U.S.C. § 10101 et seq ............................................ 10

49 U.S.C. § 10501(b),

Interstate Commerce Commission

Termination Act, (“ICCTA”)...................... passim

49 U.S.C. § 1302 ........................................................ 12

49 U.S.C. § 20101 .................................................. 6, 16

49 U.S.C. § 20103 ..................................................... 12

49 U.S.C. § 20106(a)(2),

Federal Railroad Safety Act (“FRSA”) ...... passim

49 U.S.C. § 20134(a) ................................................. 19

Pub. L. 104-88, 109 Stat. 804

(Dec. 29, 1995) .................................................... 7

Pub. L. 109-59, 119 Stat. 1924, § 9004 .................... 21

Pub. L. 95-473, 92 Stat. 1407

(Oct. 17, 1978) (former 49 U.S.C. § 10907) ......... 7

Pub. L. 96-448, 94 Stat. 1913-14

(Oct. 14, 1980) (former 49 U.S.C. § 11501) ........... 7

STATE STATUTES

Okla. Stat. tit. 66, § 190,

Blocked Crossing Statute ................................ 2, 9

viii

TABLE OF AUTHORITIES – Continued

Page

JUDICIAL RULES

Sup. Ct. R. 12.7 ........................................................... 8

Sup. Ct. R. 35.3 ........................................................... ii

REGULATIONS

49 C.F.R. § 1.89(a)..................................................... 12

OTHER AUTHORITIES

Fed. Railroad Admin.,

Highway-Rail Grade Crossings Overview,

https://railroads.dot.gov/program-areas/

highway-rail-grade-crossing/highway-railgrade-crossings-overview. ................................... 6

1

In the Supreme Court of the United States

CITY OF EDMOND, ET AL.,

Petitioners,

V.

BNSF RAILWAY COMPANY,

Respondent.

__________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The Tenth Circuit opinion dated January 11, 2022

is reproduced in the Appendix at App.1a-13a and

published at 22 F.4th 1190. The district court opinion dated November 30, 2020, is reproduced in the

Appendix at App.14a-39a and published at 504

F.Supp.3d 1249.

2

JURISDICTION

The judgment of the Tenth Circuit was entered

on January 11, 2022. App.1a. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254.

STATUTORY PROVISIONS INVOLVED

Okla. Stat. tit. 66, § 190 (in relevant part)

A. As it is immediately necessary for the safety

and welfare of the people, no railcar shall be

brought to rest in a position which blocks vehicular traffic at a railroad intersection with a

public highway or street for longer than ten (10)

minutes.

[* * *]

C.

1.

Railroads or other persons, firms or corporations operating over tracks within the

State of Oklahoma shall not block vehicle

traffic at any railroad grade crossing for a

period of time in excess of ten (10) minutes

except if the train is moving in a continuous

forward or backward direction, or if the train

is stopped for an emergency condition, including an accident, derailment, critical mechanical failure, track or bridge washout, storm,

flood or other emergency situation.

3

Interstate Commerce Commission Termination

Act (“ICCTA”)

49 U.S.C. § 10501(b) (in relevant part)

The jurisdiction of the Board over . . .

(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.

Federal Railroad Safety Act (“FRSA”)

49 U.S.C. § 20106(a)(2) (in relevant part)

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.

4

STATEMENT OF THE CASE

The FRSA confers jurisdiction over rail safety on

the Federal Railroad Administration (“FRA”) and the

states, with state power reaching any subject within

that jurisdiction that the FRA has not addressed in a

regulation or order. Oklahoma adopted a blocked

crossing statute after the FRA had acknowledged

jurisdiction over blocked crossings but had not issued

any regulations or orders regarding them despite

years of study.

Notwithstanding the FRA’s acknowledgment of

jurisdiction, the Tenth Circuit concluded that a different

federal agency has jurisdiction over blocked crossings

and found Oklahoma’s law preempted as a result.

The Tenth Circuit held that Oklahoma’s safety law is

preempted because it fell within the Surface Transportation Board’s (“STB’s”) jurisdiction over rail

construction and operation under the ICCTA, without

any need to look to the FRSA.

In reaching this conclusion, the Tenth Circuit

not only joined one circuit split and created another,

but it also eviscerated the FRA’s jurisdiction. The

Tenth Circuit joined the wrong side of a deep and

pervasive circuit split on whether the FRSA limits

ICCTA preemption over state rail operation and

construction laws. The Tenth Circuit then created a

second circuit split by holding that the FRSA applies

only to safety of those participating in the railroad

industry, to the exclusion of others interacting with

the rail system, such as motorists at rail-street intersections. The Tenth Circuit’s position in both splits

5

is directly contrary to the FRA’s acknowledgment of its

jurisdiction over blocked crossings.

Whether the FRSA gives the FRA and the states

rail safety authority that affects construction and

operation of rails is a critical question to all states,

including Oklahoma. This court should address this

important issue and resolve both circuit splits.

A.

Statutory Background.

Federal railroad law consists of a series of

statutes, each defining different agencies and each

with different standards delineating when federal

regulation preempts state law. Identifying which

agency has jurisdiction over a particular issue, like

the safety concerns from blocked crossings, is thus

key to knowing which statute applies and which

preemption clause applies.

This case asks which of two federal agencies has

jurisdiction over the safety issues posed by stopped

trains at railroad crossings with public streets. The

first agency, the Federal Railroad Administration

(“FRA”), is governed by the Federal Railroad Safety

Act (“FRSA”), which explicitly preserves state authority

except in certain circumstances where the FRA has

issued a regulation. See 49 U.S.C. § 20106(a)(2). The

second agency, the Surface Transportation Board

(“STB”), is governed by the Interstate Commerce

Commission Termination Act (“ICCTA”) and its broad

preemption clause. See 49 U.S.C. § 10501(b). The first

of these statutes to be enacted was the FRSA.

Prior to the FRSA, the Interstate Commerce

Commission had jurisdiction over much of railroad

law, but no federal agency had jurisdiction over safety

6

at highway-rail grade crossings.1 In 1965, a threejudge court concluded the then-extant Interstate

Commerce Commission lacked jurisdiction over

crossings. Am. Trucking Ass’ns, Inc. v. United States,

242 F.Supp. 597, 599 (D.D.C. 1965). It held that

“jurisdiction to establish safety regulations with respect

to rail-highway grade-crossing matters resides

exclusively in the states.” Id. at 601. This Court

affirmed. See Am. Trucking Ass’ns, Inc. v. United

States, 382 U.S. 373, 373 (1966). In other words, as

the three-judge court stated, “[a]uthority over public

safety at rail-highway grade-crossings has been ruled

by the Supreme Court of the United States as

peculiarly within the police power of the states.” Am.

Trucking Ass’ns, Inc., 242 F.Supp. at 599.2

Congress never enacted any statute giving regulatory power over rail safety to the Interstate Commerce

Commission. Instead, four years after the American

Trucking decisions, Congress enacted the FRSA, which

created the FRA and gave the new agency jurisdiction over crossings. The statute gave the FRA a rail

safety jurisdiction that includes “every area of railroad

operations,” including crossings. 49 U.S.C. § 20101.

Such jurisdiction makes sense because safety is inevit1 The term “highway-rail grade crossing” refers to an intersection

where a road crosses a railroad at the same level as the railroad

as opposed to crossing over or under it. See Highway-Rail

Grade Crossings Overview, Fed. Railroad Admin., https://railroads.

dot.gov/program-areas/highway-rail-grade-crossing/highway-railgrade-crossings-overview.

2 To be sure, the Interstate Commerce Commission sometimes

included crossing provisions in merger and acquisition (“M&A”)

orders under its plenary M&A power, but it never asserted

power to regulate crossings more generally, leaving that power

to the States.

7

ably about the manner in which a railroad company

builds and operates. This statute also permitted states

to “adopt or continue in force” laws “related to railroad

safety” unless and until the FRA “prescribes a regulation or issues and order covering the subject matter of

the State requirement.” Id. § 20106(a)(2).

Twenty years later, Congress terminated the

Interstate Commerce Commission by enacting the aptly

named Interstate Commerce Commission Termination

Act (ICCTA), transferring the Commission’s regulatory

power over railroads to the STB. It defined the STB’s

jurisdiction as encompassing “all functions that, immediately before January 1, 1996, were functions of the

Interstate Commerce Commission or were performed by

any officer or employee of the Interstate Commerce

Commission in the capacity as such officer or employee.”

49 U.S.C. § 1302. It then addressed whether that jurisdiction was exclusive depending on the topic area. In

relevant part, the ICCTA states that “[t]he jurisdiction

of the Board over” such topics as “construction” or

“operation” of rails “is exclusive.” 49 U.S.C. § 10501(b).

In enacting the ICCTA, Congress altered some but

not all the powers reserved to states. For example, it

repealed a savings clause about state regulation of

intrastate rates, and it repealed a clause denying the

Commission authority over certain intrastate tracks.

Compare Pub. L. 96-448, at 19-20, 94 Stat. 1913-14

(Oct. 14, 1980) (former 49 U.S.C. § 11501), and Pub. L.

95-473, at 71, 92 Stat. 1407 (Oct. 17, 1978) (former

49 U.S.C. § 10907), with Pub. L. 104-88, at 2, 109 Stat.

804 (Dec. 29, 1995) (repealing and replacing that

subchapter of title 49).

Nevertheless, Congress did not modify or repeal

the FRSA and its savings clause or otherwise address

the FRSA’s relationship to the ICCTA. Both the

8

ICCTA’s preemption clause and the FRSA’s savings

clause remain in Title 49 of the U.S. Code. And, critically, while the ICCTA transferred the ICC’s authority

to the STB, it did not expand that authority to include

safety at highway-rail grade crossings.

B.

Facts and Procedural History.

1. Blocked crossings are a safety issue. A paramedic in Davis, Oklahoma, for example, has been forced

to jump between rail cars of a stopped train to reach a

patient in time to save them from a life-or-death

anaphylactic shock. See J.A.1 160, J.A.2 401-403.3 Firefighters in Marietta, Oklahoma have arrived late to

structure fires due to blocked crossings. See J.A.1 163;

J.A.2 405-406. Paramedics in Marietta are also frequently delayed from reaching patients due to blocked

crossings. See J.A.1 166-167, J.A.2 408-409. Emergency

service vehicles in Davis, Oklahoma, can take almost 37

minutes to reach sites two-and-a-half blocks away because of a blocked crossing forcing them onto alternative

routes. See J.A.1 171; J.A.2 411-412.

Persistent blocked crossings have also caused residents to take more risks with crossings, increasing the

chances for collisions with trains and jeopardizing the

safety of both the motorist and those on the rail. For

example, a resident of Davis told the police department

that she drove around cones at a coned-off crossing

because the Main Street crossing was blocked. See

J.A.1 174.

The FRA has explained that blocked crossings are

a rail safety issue based on similar facts. J.A.1 155. It

has cited pedestrians crawling under or through trains,

3 All fact citations are to the record in the Tenth Circuit, which

is available below and cited herein as “J.A.” See Sup. Ct. R. 12.7.

9

emergency vehicles being delayed, and drivers driving

around closed gates or racing to beat trains to avoid

lengthy delays. Id.

Despite these safety issues, respondent BNSF has

refused to take any meaningful action to address

blocked crossings. It has not even tracked when its

trains block crossings, let alone investigated the causes

of such blockages. See J.A.1 187. In fact, it blocks

crossings so routinely that it complains about the cost

of tracking the blockages. J.A.2 423. Nor are these

blockages necessitated by federal regulations or emergency concerns. One of respondent’s regional vice presidents admitted that BNSF has blocked traffic at a

highway-rail crossing so that an employee could grab a

cup of coffee. See J.A.1 201; see also J.A.1 200 (testimony

referenced by the Regional VP).

2. In 2019, the Oklahoma Legislature passed a law

to address the safety issues resulting from blocked

crossings in Oklahoma. See Okla. Stat. tit. 66, § 190

(the “Blocked Crossing Statute”). The statute prohibits

trains from stopping in a manner that blocks vehicle

traffic at any railroad crossing for more than 10

minutes, subject to certain exceptions. See id. This

statute became effective on July 1, 2019. See id.

3. On July 16, 2019, BNSF stopped a train in

three intersections in Davis, Oklahoma, for 38 minutes.

On July 17, 2019, BNSF stopped a train in an intersection in Edmond, Oklahoma, for 80 minutes. On

July 29, 2019, BNSF again stopped a train again in

an intersection in Edmond, this time for 37 minutes.

The cities of Edmond and Davis issued citations

to BNSF under the Blocked Crossing Statute and

initiated proceedings before the administrative law

judges of the Oklahoma Corporation Commission. J.A.1

10

15-27. No adjudication of the citations occurred before

BNSF sued the cities and the Commissioners in the district court, alleging that the Blocked Crossing Statute

was facially preempted by federal law.

The Oklahoma Attorney General intervened in

defense of the state law. On cross-motions for summary

judgment, the district court held that the state

statute is facially preempted by the ICCTA, 49 U.S.C.

§§ 10101 et seq., and permanently enjoined enforcement

of the state statute. App.38a-39a.

4. Defendants appealed to the Tenth Circuit.

The Tenth Circuit believed that “[t]he plain language

is clear” that “the STB has exclusive jurisdiction over

the operation of side tracks in Oklahoma” and stated

that it need not look at other federal statutes “[b]ecause

the ICCTA is unambiguous.” App.7a (citing 49 U.S.C.

§ 10501(b)). It expressly approved of the Fifth Circuit’s

analysis applying the ICCTA to preempt a state

blocked-crossing statute in Friberg v. Kan. City S. Ry.

Co., 267 F.3d 439, 443-44 (5th Cir. 2001). App.7a-8a.

Because, in its view, “the ICCTA preempts the Blocked

Crossing Statute,” the Tenth Circuit stated it “need not

consider whether the FRSA does too.” App.9a.

Nonetheless, addressing petitioners’ argument that

the ICCTA must be analyzed in pari materia with the

FRSA, the Tenth Circuit held that the FRSA was

wholly inapplicable because the Blocked Crossing

Statute “concerns public safety, not rail safety.” App.

10a. It acknowledged that the STB and FRA agree that

these agencies have separate jurisdictions with separate

preemptive scope. App.11a. It also acknowledged the

Eighth Circuit’s view that the FRSA’s purview over rail

safety “include[s] the highway safety risks created at

rail crossings.” App.13a. But it then tried to distinguish

the Eighth Circuit’s holding on the ground that its

11

sister circuit only considered facts relating to rail

construction, not facts relating to rail operation, when

defining the scope of the FRSA’s preservation of state

authority over rail safety. App.13a.

Thus, the Tenth Circuit affirmed the district court,

stating that “the district court properly analyzed

whether the ICCTA, and not the FRSA, preempts the

Blocked Crossing Statute.” App.13a.

REASONS FOR GRANTING THE PETITION

The decision below rested on two holdings, each

of which is the subject of a circuit split. First, the

Tenth Circuit held that because the language of the

ICCTA read in isolation preempted the Blocked

Crossing Statute, it need not consider whether the

ICCTA’s scope is informed by the FRSA. This mode

of analysis aligned with the Fifth Circuit, but departed

from the Second, Sixth, Eighth, Ninth, and D.C.

Circuits. Second, the Tenth Circuit held that the

FRSA, in any event, is not implicated because blocked

crossings are not a “rail safety” issue since they (in

the Tenth Circuit’s view) only jeopardize the safety of

the public’s interactions with the railroads, not the

safety of the railroad system or its participants. That

holding conflicts with a prior decision of the Eight

Circuit on the scope of the FRSA’s purview over rail

safety. Certiorari is warranted to resolve this division

among lower courts and address the frequently

recurring and important issue of safety at the intersection between public roads and railroads.

12

I.

CERTIORARI IS WARRANTED TO RESOLVE A 5-2

SPLIT AMONG FEDERAL COURTS OF APPEALS

ON THE SCOPE OF ICCTA PREEMPTION.

A brief recap of the statutory history and scheme

is warranted. First, the basis of the STB’s jurisdiction

conferred by the ICCTA is that which was transferred

from the now-defunct Interstate Commerce Commission

(“ICC”). 49 U.S.C. § 1302. That transferred jurisdiction

did not include jurisdiction over safety issues at

highway-rail grade crossings. Am. Trucking Ass’ns,

Inc. v. United States, 242 F.Supp. 597, 599 (D.D.C

1965), aff’d 382 U.S. 373 (1966). Second, the jurisdiction

granted to the STB, to the extent such jurisdiction is

over rail “construction” or “operations,” is “exclusive.”

49 U.S.C. § 10501(b). Third, the FRSA vests the FRA

with jurisdiction over “every area of railroad safety”

so as “to promote safety in every area of railroad

operations.” 49 U.S.C. §§ 20101, 20103; 49 C.F.R.

§ 1.89(a). But this jurisdiction is not exclusive—the

FRA preserves traditional state authority “related to

railroad safety” until the FRA “prescribes a regulation

or issues an order covering the subject matter of the

State requirement.” 49 U.S.C. § 20106(a)(2).

The question thus facing courts is: when a safety

regulation affects railroad “operations” or “construction,”

is it within the jurisdiction of the STB pursuant to

the ICCTA? If so, because the STB’s jurisdiction is

exclusive, it would oust not only state authority over

that safety issue, but also the FRA’s authority, thereby implicitly repealing the FRSA’s coverage of safety

over “every area of railroad operations.” And it would

expand the scope of the STB’s exclusive jurisdiction

over railroad operations and construction to include

railroad safety issues, which was not within the

ICC’s former jurisdiction transferred to the STB.

13

This is how the Tenth Circuit ruled. It joined the

Fifth Circuit in interpreting the scope of the ICCTA

as covering all aspects of railroad operations, regardless

of whether the operational issue is also a safety issue

that would be covered by the FRSA. App.8a-9a. In

contrast, the Second, Sixth, Eighth, Ninth, and D.C.

Circuits have all limited the scope of ICCTA in part

by harmonizing it with the FRSA’s savings clause

that preserves traditional state authority over railroad

safety. App.9a. Resolving this circuit split will have

significant consequences for states’ ability to protect

against railroad hazards and warrants this Court’s

review.

Contrasting the Tenth Circuit’s holding with the

Eighth Circuit’s rule illuminates the disagreement.

The Tenth Circuit below held that the Blocked Crossing

Statute is preempted because it affects railroad

“operations,” and is thus within the purview of the

ICCTA, so it need not look any further. See App.9a.

The Eighth Circuit, in contrast, denounced that mode

of analyzing the ICCTA as “deceptively simple” because

it reads the ICCTA out of context of the rest of federal railroad law. Iowa, Chicago & E. R.R. Corp. v.

Washington Cty., Iowa, 384 F.3d 557, 559 (8th Cir.

2004). That court concluded that the better reading

of the ICCTA is that the STB has exclusive jurisdiction

over rail operations issues passed from the Interstate

Commerce Commission’s jurisdiction, not that the

STB’s jurisdiction encompasses all operational choices

including those within the jurisdiction of preexisting

federal agencies. See id. at 559-60. As it explained,

reading the ICCTA to commit all railroad operational

choices to the STB—like the Tenth Circuit did below—

“ignores relevant federal statutes that were enacted

before ICCTA, that are administered by one or more

14

agencies other than the [Interstate Commerce Commission] or the STB, and that Congress left intact in

enacting ICCTA.” Id. at 559.

The Ninth Circuit similarly read the ICCTA as

only addressing the exclusivity of the STB’s jurisdiction,

not as defining the STB’s jurisdiction to encompass

all regulations related to rail construction and

operations. “Despite the broad ‘preemption’ language

of § 10501(b) of the ICCTA, and consistent with the

jurisprudence on ‘implicit repeals,’ courts and the STB

have routinely held that the ICCTA does not repeal

particular federal statutes and the remedies provided

thereunder.” Swinomish Indian Tribal Cmty. v. BNSF

Ry. Co., 951 F.3d 1142, 1157 (9th Cir. 2020). This conclusion is unsurprising because the ICCTA “generally

does not attempt to substantively redesign rail regulation.” S. Rep. 104-176, 1st Sess. (1995), 1995 WL

701522, at *6. The Ninth Circuit cited with approval

eight different cases, all of which held that the ICCTA

does not confer railroad operational decisions to the

STB that were previously conferred to other federal

agencies under different statutes. Swinomish, 951

F.3d at 1157. As it observes, concluding that the ICCTA

gave the STB jurisdiction over all railroad operations

conferred to other federal agencies would repeal not

only the FRSA but also portions of the Clean Air Act,

Coal Industry Health Benefits Act, and Hazardous

Materials Transportation Act, among other statutes.

See id.

The Sixth Circuit reached a similar conclusion.

See Tyrrell v. Norfolk S. Ry. Co., 248 F.3d 517, 523

(6th Cir. 2001). The court held in Tyrrell that any

state law that has a “connection with” rail safety is

governed by the FRSA, even if it does not mention

safety, and even if it does not have a safety-related

15

purpose. See id. Based on that rule, the court criticized

the district court on review for converting everything

involving railroads into an ICCTA issue. See id. at

522. The Sixth Circuit concluded that a law affecting

rail operations is not an ICCTA issue if the law has a

connection with rail safety. See id.

The D.C. Circuit agreed with that description of

the relationship between the FRSA and the ICCTA.

See Bos. & Maine Corp. v. Surface Transp. Bd., 364

F.3d 318, 320-21 (D.C. Cir. 2004). It held that the

rehabilitation of rail lines—rail construction, a topic

listed in the ICCTA—was committed to the FRA and

not the STB because of the FRA’s jurisdiction over

“matters relating to safety.” See id.

The Second Circuit made explicit that it was

joining the growing chorus among the circuits of not

applying the ICCTA to rail safety issues. Island Park,

LLC v. CSX Transp., 559 F.3d 96, 107 (2d Cir. 2009).

“Several circuits that have examined the interplay

between ICCTA and FRSA have concluded that the

federal statutory scheme places principal federal

regulatory authority for rail safety with the Federal

Railroad Administration (“FRA”), not the STB. We

agree.” Id. It then declined to apply the ICCTA,

concluding that “FRSA provides the appropriate basis

for analyzing whether a state law, regulation or

order affecting rail safety is pre-empted by federal

law.” Id.; see also id. at 108 (“the [order on review]

sufficiently implicates rail safety concerns such that

FRSA and not ICCTA is the principal governing statute

in determining whether state authority is pre-empted”).

In contrast to these five circuits, the Fifth Circuit

held the ICCTA impliedly repealed the FRSA. It

concluded that the ICCTA conferred all issues affecting

railroad operations to the STB, reading the ICCTA’s

16

preemption clause without any reference to the rest

of the ICCTA or federal railroad law. See Friberg,

267 F.3d at 443. The Fifth Circuit assumed that because it believed the ICCTA’s preemption clause was

clear, it did not need to look at any other federal

statutes. See id.

The Tenth Circuit agreed. It repeatedly quoted

from Friberg and other related Fifth Circuit cases to

emphasize that blocked railroad crossing laws “impose

operating limitations on a railroad” and that “[b]ecause

the ICCTA preempts the Blocked Crossing Statute,

we need not consider whether the FRSA does too.”

App.9a. Neither the Fifth Circuit nor the Tenth

Circuit ever explain how they decided which federal

statute to look at first when using this statutory

interpretation method.

To be sure, as the Tenth Circuit observed, only

the Fifth Circuit was addressing railroad operation,

while the other circuits were addressing railroad

construction. App.9a n.4. But contrary to the Tenth

Circuit’s implication, no reasonable interpretation of

those two statutes would hold that the FRSA reaches

construction but not operation issues. The ICCTA

broadly states that “[t]he jurisdiction of the Board over”

such topics as “construction” or “operation” of railroads

“is exclusive”—without distinguishing between

construction and operation. 49 U.S.C. § 10501(b). And

the FRSA states that it reaches “every area of railroad

operations.” 49 U.S.C. § 20101. If the ICCTA implicitly

repeals the FRSA, then it does so for both “construction”

and “operation.” On the other hand, if it co-exists with

the FRSA for “construction,” then it likewise co-exists

with the FRSA for “operation.”

The Tenth Circuit is also correct—and respondent

is sure to point out—that courts have largely shown

17

distaste for state blocked-crossing statutes and favored

the Fifth Circuit’s legal interpretation when presented

with similar facts. There are around two dozen cases

from state courts and federal district courts adopting

the Fifth Circuit’s rationale when presented with a

blocked crossing statute. But it simply cannot be

ignored that, in a variety of other factual contexts

most federal circuits have embraced a contrary legal

interpretation to that of the Fifth and Tenth Circuits.

Both lines of jurisprudence cannot be correct because,

unlike common law rules, the meaning of these federal statutes does not vary with the underlying factual

application. See United States v. Santos, 553 U.S. 507,

522 (2008). “To hold otherwise ‘would render every

statute a chameleon,’ and ‘would establish within our

jurisprudence . . . the dangerous principle that judges

can give the same statutory text different meanings in

different cases.” Id. at 522-23 (quoting Clark v.

Martinez, 543 U.S. 371, 382, 386 (2005)) (internal

citations omitted). This case, in short, presents a clear

circuit split on an important legal issue.

Saying there is “no split” regarding blocked crossings, App.9a n.4, ignores that there is a split in statutory interpretation. In other words, while the courts

that have adopted the minority legal rule are unanimous on how that rule applies to state blockedcrossing statutes, the majority of courts reject the

minority’s view of the law. The majority view would

lead to a different result when applied to blocked

crossings. The Tenth Circuit’s legal position is not

reconcilable with the prevailing legal rule in its sister

circuits—published decisions that apply in any fact

pattern, whether operation or construction of rails. Statutory interpretation is an exercise in reading statutes,

not in counting heads for judgments on the same facts.

18

This Court’s intervention is sorely needed to

resolve the split. If the Fifth and Tenth Circuits are correct, then their sister circuits are giving the FRA and

states far too much authority over rails. In contrast,

if the Second, Sixth, Eighth, Ninth, and D.C. Circuits

are correct, then the Fifth and Tenth Circuits are

unreasonably legislating away important state power

and the jurisdiction of the FRA. Only this Court can

resolve the proper division of authority between the

ICCTA and the FRSA.

II. CERTIORARI IS ALSO WARRANTED TO RESOLVE

THE CIRCUIT SPLIT CREATED BY THE DECISION

BELOW REGARDING THE SCOPE OF RAIL SAFETY

COVERED BY THE FRSA.

Perhaps seeking to avoid resting its decision

solely on a legal ruling that is the subject of a

profound circuit split, the Tenth Circuit further held

that the FRSA need not be considered because threats

to public safety at the rails—such as blocked

crossings—do not implicate “rail safety” covered by

the FRSA. But in so holding, the court below created

a new split over the meaning of “rail safety” for purposes of the FRSA. The existence of two circuit splits

over the same essential subject—what authority Congress conferred on various federal agencies and states

over railroads—indicates a progressively fracturing

problem in need of a unified solution from this Court.

In reconciling the ICCTA with the FRSA, the

Eighth Circuit has held that the term “rail safety” in

the FRSA includes the safety risks on both the highway and the rails wherever they cross. Iowa, Chicago

& E. R.R. Corp., 384 F.3d at 560. “If [the plaintiff railroad] is arguing that ‘rail safety’ for purposes of FRSA

preemption does not include the highway safety risks

created at rail crossings, that cramped reading of the

19

FRSA is inconsistent with 49 U.S.C. § 20134(a), with

the federal rail crossing regulations discussed in [CSX

Transp., Inc. v. Easterwood, 507 U.S. 658 (1993)], and

with common sense.” Id. By contrast, an intermediate

California state court has decided that safety risks on

the highway where it intersects with the rails only concern public safety and are not within the term “rail

safety” in the FRSA. See People v. Burlington N. Santa

Fe R.R., 148 Cal. Rptr. 3d 243, 253 (2012).

The Tenth Circuit sided with the intermediate

California court over its sister circuit, holding that

the term rail safety does not include the public safety

risks at highway-rail crossings. App.12a. After acknowledging that the Eighth Circuit held that

“highway safety risks created at rail crossings” are

within the scope of FRSA’s “rail safety,” and thus

within state rail safety jurisdiction, the Tenth Circuit

then tried to distinguish the Eighth Circuit opinion

from the facts of this case to avoid a split. App.13a.

Its attempts to sidestep the Eighth Circuit’s decision

are unavailing.

First, the Tenth Circuit tried to argue that the

Eighth Circuit’s comments on the FRSA are dicta.

App.13a. That is not true: the Eighth Circuit raised

the FRSA sua sponte to reject an argument about

ICCTA preemption—the exact argument at issue

here. See Iowa, Chicago & E. R.R. Corp., 384 F.3d at

560-61. To be sure, the FRSA was not the only statute

barring application of the ICCTA, see id., but the

FRSA’s relevance in that case applies with equal force

to this case. Indeed, the Eighth Circuit summarized the

railroad’s arguments as that highway safety issues

were ICCTA and not FRSA issues. See id. at 560. The

asserted problems were the risks to “school buses

and emergency vehicles”—the same as Oklahoma’s

20

problems. Compare id., with supra p.8. It is difficult to

see any genuine distinction between that opinion’s

“highway” safety concerns and the Tenth Circuit’s

“public” safety concerns.

Second, the Tenth Circuit tried to argue that the

Eighth Circuit’s facts were better suited for rail safety

because deteriorating bridges “may create potential

hazards to the railroad system or its participants.”

App.13a. The Eighth Circuit never made that conclusion, however, as it only discussed the risks to emergency vehicles and other similar harms. Iowa, Chicago

& E. R.R. Corp., 384 F.3d at 560-61. But even if it

had stated that conclusion, such a standard would

not justify the Tenth Circuit’s holding here. As the

FRA has explained, one of the major rail safety concerns from blocked crossings is that drivers take more

risks in attempting to beat trains before a blockage

occurs, increasing incidents of accidents between cars

and trains. J.A.1. 155. Crashes between car and trains

are surely potential hazards to the railroad system and

its participants. The Tenth Circuit departed not only

from the Eighth Circuit’s actual reasoning but also from

its own reinvention of the Eighth’s reasoning, creating

a split.

Again, in attempting to distinguish the Eighth

Circuit rather than acknowledging the split, the

Tenth Circuit drew a distinction between construction

and operation of rails found nowhere in the relevant

statutes. It stated outright that rail safety can affect

“the condition of grade crossings”—construction—but

not “the movement of trains”—operation. App.13a.

The Eighth Circuit drew no such line. It held without

distinction that risks to the public highway from

highway-rail interactions are part of the state “rail

safety” jurisdiction protected by the FRSA.

21

The court below also failed to grapple with the

reality that the Eighth Circuit’s interpretation is more

consistent with Congress and the FRA’s interpretation

of the term “rail safety.” When Congress ordered a

report on the impact of blocked crossings on emergency

services in 2005, it committed that report solely to

the FRA (within the Department of Transportation)

and not the STB (outside the Department). See Pub.

L. 109-59, 119 Stat. 1924, § 9004; J.A.2 306-363. As

the FRA has further explained, its rail safety jurisdiction reaches blocked crossings because of the

resulting harmful interactions between car and rail

traffic, affecting both cars and railroads. See J.A.1 155.

Thus, it asserted sole jurisdiction over blocked crossings without input from the STB. See id. The Tenth

Circuit’s holding that blocked crossings are not a rail

safety issue under the FRSA conflicts with the

interpretations of both the branch of government that

wrote the FRSA (Congress) and the agency that

administers the FRSA (the FRA). The Tenth Circuit’s

failure to address that contrary evidence when

deepening its split from sister circuits is a strong sign

that its side of the split is not well-reasoned.

The two circuit splits implicated by the decision

below can and should be resolved together. If the FRSA

was not implicitly repealed by the ICCTA, then it has

independent force with respect to rail safety for both

construction and operation of rails. The Tenth Circuit’s

decision to create a new split from the Eighth would be

rendered obviously wrong. These multiplying splits only

highlight the growing fracture over the scope of state

rail safety power. This Court should take up both

splits together to resolve them in one case, ending the

division in lower courts.

22

III. THIS IS AN EXCELLENT VEHICLE TO RESOLVE

AN IMPORTANT ISSUE.

The preemptive scope of these two statutes

typically arises in cases that are not as clean as this

case. Sometimes additional statutes are at issue

beyond these two statutes. See Iowa, Chicago & E.

R.R. Corp., 384 F.3d at 560-61 (addressing other

potential statutes at issue). Other times, the statutes

arise in a negligence-per-se tort case with additional

common law claims and other muddled facts. See,

e.g., Elam v. Kansas City S. Ry. Co., 635 F.3d 796, 802

(5th Cir. 2011) (plaintiff drove into a train that was

already stopped and argued the railroad was negligent).

In this case, the facts are undisputed, and the

statutes are presented for facial preemption conclusions

alone. Respondent stops its trains both for employee

coffee stops, see supra p.9, and for meet-and-pass

maneuvers, where scheduling two trains for the

same track leads to one of them needing to stop on a

side track. Likewise, Oklahoma experiences safety

issues that match what the FRA has described as

safety issues from blocked railroad crossings. See

supra p.8-9. Any more nuanced as-applied issues can

be left to separate proceedings over individual citations,

while the facial preemption issue is cleanly presented

in this case for this Court.

State legislatures need clarity from this Court

on the scope of their authority. If the majority

circuits are correct in their legal interpretation, then

states can tailor their laws to fit the powers saved

under the FRSA. But if the Tenth Circuit is correct

in foreclosing state rail operations laws, then state

legislatures need to know not to spend their time

writing such laws, whether regarding blocked crossings

or other operations issues. See, e.g., Transportation

23

Div. of the Int’l Ass’n of Sheet Metal, Air, Rail, &

Transportation Workers v. Fed. R.R. Admin., 988

F.3d 1170, 1174 (9th Cir. 2021) (states of Washington,

California, and Nevada defending their two-person

crew requirements for rail operations). The ambiguity

left by a circuit split means that states generally

assume they have safety authority over operations,

while railroads generally assume complete preemption

of state laws, making any legislative or negotiated

solution needlessly difficult.

Moreover, clarity is needed because, aside from the

states, no one is doing anything to solve the numerous

safety issues arising from the chronic problem of

stopped trains blocking public roads. Respondent does

not attempt to address these issues, see supra p.9,

choosing instead to jam as many trains onto its network

as possible, see J.A.1 190-191, maximizing both its

profits and the harm caused by perennial blocked crossings. Meanwhile, the FRA has been studying the issue

for years and yet, despite acknowledging the safety

hazards, it has not issued any regulation or order

regarding the issue. See J.A.1 154-156, 182-83, 202-211.

Indeed, it is precisely because the FRA has not issued a

regulation “covering the subject matter” of blocked

crossings that states are not preempted from addressing

the issue themselves. 49 U.S.C. § 20106(a)(2); cf.

Easterwood, 507 U.S. 658 (explaining the scope of FRSA

preemption).

Clarity for both state legislatures and railroads

can only arise from this Court’s input in a clean

vehicle like this case. This Court should grant certiorari

to resolve the circuit splits over the scope of state

authority regarding rail safety.

24

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

JOHN M. O’CONNOR

ATTORNEY GENERAL

MITHUN MANSINGHANI

SOLICITOR GENERAL

COUNSEL OF RECORD

BRYAN CLEVELAND

DEPUTY SOLICITOR GENERAL

OFFICE OF THE OKLAHOMA

ATTORNEY GENERAL

313 N.E. TWENTY-FIRST STREET

OKLAHOMA CITY, OK 73105

(405) 522-4392

MITHUN.MANSINGHANI@OAG.OK.GOV

COUNSEL FOR PETITIONERS

MARCH 23, 2022