Amicus Curiae Brief — Ohio, Petitioner v. CSX Transportation, Inc.

Supreme Court briefDec 15, 2022

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No. 22-459

IN THE

Supreme Court of the United States

____________________________________

STATE OF OHIO,

Petitioner,

CSX TRANSPORTATION, Inc.,

Respondent.

____________________________________

On Petition for a Writ of Certiorari

to the United States Supreme Court

____________________________________

BRIEF OF INDIANA AND 18 OTHER

STATES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

____________________________________

Office of the Indiana THEODORE E. ROKITA

Attorney General

302 W. Washington St. THOMAS M. FISHER*

Indianapolis, IN 46204 Solicitor General

(317) 232-6255

JAMES A. BARTA

Tom.Fisher@atg.in.gov

Deputy Solicitor General

MELINDA R. HOLMES

*Counsel of Record

RAZI S. LANE

Deputy Attorneys General

Counsel for Amici States

Additional counsel listed in addendum

QUESTIONS PRESENTED

1. Does 49 U.S.C. § 101501(b) preempt state laws that

regulate the amount of time a stopped train may block a

grade crossing?

2. Does 49 U.S.C. § 20106(a)(2) save from preemption

state laws that regulate the amount of time a stopped train

may block a grade crossing?

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED .................................... ii

TABLE OF AUTHORITIES ..................................... v

INTEREST OF THE AMICI STATES ..................... 1

SUMMARY OF ARGUMENT .................................. 3

REASONS FOR GRANTING THE PETITION ...... 5

I. Review is Warranted Because Blocked

Crossings Imperil Citizen Safety Across

the Country ......................................................... 5

II. States Have Long Used Anti-Blocking Laws

to Make Grade Crossings Safer .......................... 9

III. Neither the Termination Act Nor the

Safety Act Preempts Anti-Blocking

Statutes .......................................................... 14

A. As federal authorities have themselves

acknowledged, the Safety Act and

Termination Act leave anti-blocking

laws to States and localities................... 16

B. States are best positioned to address

local challenges presented by blocked

crossings ................................................. 20

CONCLUSION ....................................................... 23

TABLE OF AUTHORITIES

CASES

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

242 F. Supp. 597 (D.D.C. 1965), aff’d 382

U.S. 373 (1966) .................................................. 11

Ass’n of Am. Railroads v. Hatfield,

435 F. Supp. 3d 769 (E.D. Ky. 2020) .................. 7

Bickel v. Penn. R. Co.,

217 Pa. 456 (Pa. 1907) ...................................... 11

Capelle v. Baltimore & O. R. Co.,

24 N.E.2d 822 (Ohio 1940) ................................ 13

Chicago & Nw. Transp. Co. v. Iowa Transp.

Regul. Bd.,

322 N.W.2d 273 (Iowa 1982) ............................. 14

City of Harrodsburg v. S. Ry. Co.,

455 S.W.2d 576 (Ky. 1969)................................ 13

Cleveland, C., C. & I. Ry. Co. v. Harrington,

30 N.E. 37 (Ind. 1892) ....................................... 10

Com. v. N.Y. Cent. R. Co.,

216 N.E.2d 870 (Mass. 1966) ............................ 13

CSX Transp., Inc. v. Easterwood,

507 U.S. 658 (1993) ....................................... 4, 16

Eagle Marine Indus., Inc. v. Union Pac. R.R. Co.,

882 N.E.2d 522 (Ill. 2008) ................................... 2

CASES [CONT’D]

Evans v. Lake Shore & M.S.R. Co.,

50 N.W. 386 (Mich. 1891) ................................. 11

Farwell v. Boston & Worcester R.R. Corp,

45 Mass. 49 (Mass. 1842) .................................. 10

Fay v. Minneapolis, St. P. & S. S. M. Ry. Co.,

111 N.W. 683 (Wis. 1907) ........................... 11, 12

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

267 F.3d 439 (5th Cir. 2001) ............................... 7

Hodgin v. S. Ry. Co.,

55 S.E. 413 (N.C. 1906) ..................................... 11

Lake Erie & W.R. Co. v. Mackey,

53 41 N.E. 980 (Ohio 1895) ............................... 12

Lehigh Valley R. Co. v. Bd. of Pub. Util.

Comm’rs,

278 U.S. 24 (1928) ............................................. 10

Norfolk & W. Ry. Co. v. State,

387 N.E.2d 1343 (Ind. Ct. App. 1979) .............. 14

Penn. R.R. Co. v. Goldenbaum,

269 A.2d 229 (Del. 1970) ............................. 13, 14

Pittsburgh, Cincinnati & St. Louis Ry. Co. v.

Brown,

67 Ind. 45 (Ind. 1879) ........................................ 12

vii

CASES [CONT’D]

R.R. Comm’n of Cal. v. S. Pac. Co.,

264 U.S. 331 (1924) ............................................. 1

Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 (1947) ........................................... 15

S. Pac. Transp. Co. v. Pub. Util. Comm’n,

9 F.3d 807 (9th Cir. 1993) ................................. 17

Schmidt v. Milwaukee & St. P. Ry. Co.

23 Wis. 186 (Wis. 1868)..................................... 10

State v. Norfolk S. Ry. Co.,

107 N.E. 3d 468 (Ind. 2018) ............................ 2, 8

Terranova v. S. Pac. Transp. Co.

761 P.2d 1029 (Ariz. 1988) ................................ 14

Thiele v. Norfolk & W. Ry. Co.,

68 F.3d 179 (7th Cir. 1995) ............................... 22

Tracy v. New York, N.H. & H.R. Co.,

72 A. 156 (Conn. 1909) ...................................... 11

Tyrrell v. Norfolk S. Ry. Co.,

248 F.3d 517 (6th Cir. 200 .......................... 18, 19

United States v. Bass,

404 U.S. 336 (1971) ........................................... 15

People ex. rel. Village of McCook v. Ind. Harbor

Belt R.R. Co.,

628 N.E.2d 297 (Ill. Ct. App. 1992) .................. 14

viii

CASES [CONT’D]

Wakefield v. Conn. & P.R. Co.,

37 Vt. 330 (Vt. 1864) ......................................... 10

Walker v. Mo. Pac. Ry. Co.,

149 P. 677 (Kan. 1915) ...................................... 13

Webster v. Roth,

18 N.W.2d 1 (Wis. 1945) ................................... 11

STATUTES

75 Pa. Cons. Stat. § 3713 ....................................... 10

75 Pa. Cons. Stat. § 6907–08 ................................. 10

49 U.S.C. § 10101 ................................................... 18

49 U.S.C. § 10101(1) ............................................... 18

49 U.S.C. § 10101(2) ......................................... 16, 18

49 U.S.C. § 10102(9)(A) .......................................... 18

49 U.S.C. § 10501(b) ........................................... 4, 18

49 U.S.C. § 20101 ................................................... 14

49 U.S.C. § 20103(a) ........................................... 3, 16

49 U.S.C. § 20106 ................................................... 19

49 U.S.C. § 20106(a)(2)....................................... 3, 16

49 U.S.C. §§ 20106(a)(2)(A)-(C) .............................. 16

STATUTES [CONT’D]

39 R.I. Gen. Laws § 39-8-4 ..................................... 10

625 Ill. Comp. Stat. 5/18c-7402 .................... 9, 21, 22

Ala. Code § 37-8-115 ................................................. 9

Ariz. Rev. Stat. § 40-852........................................... 9

Ark. Code § 23-12-1007 ............................................ 9

Ark. Code § 23-12-1008 ............................................ 9

Conn. Gen. Stat. § 13b-339 ................................ 9, 11

Conn. Gen. Stat. § 13b-342 ...................................... 9

D.C. Mun. Regs. tit. 18 § 2211 ................................. 9

D.C. Mun. Regs. tit. 24 § 120 ................................... 9

Del. Code Title 17, § 701(c) ...................................... 9

Fla. Stat. § 351.03 .................................................... 9

Fla. Stat. § 351.034 .............................................. 1, 9

G.S. 1862, 28, § 55 .................................................. 10

Ga. Code § 46-8-197.................................................. 9

Idaho Code § 49-1425 ............................................... 9

Ind. Code § 8-6-7.5-1........................................... 9, 11

STATUTES [CONT’D]

Ind. Code § 8-6-7.5-2................................................. 9

Ind. Code § 8-6-7.5-3................................................. 9

Ind. Rev. Stat. § 2176 (1896) .................................. 11

Iowa Code § 327G.32 ................................................ 9

Iowa Code § 327G.32(1)(d) ....................................... 2

Iowa Code § 327G.32(3) .......................................... 21

Iowa Code § 327G.32(4) .......................................... 21

Kan. Stat. § 66-273 ............................................. 9, 11

Kan. Stat. § 66-274 ............................................. 9, 11

Ky. Rev. Stat. § 277.200 ....................................... 7, 9

Ky. Rev. Stat. § 277.990 ........................................... 9

Ky. Rev. Stats. § 525.140 ......................................... 7

La. Stat. § 48:391...................................................... 9

La. Stat. § 48:392...................................................... 9

Mass. Gen. Laws Chapter 160, § 151 ................ 9, 11

Mich. Comp. Laws § 462.391 ................................... 9

Minn. Stat. § 219.383 ......................................... 2, 10

STATUTES [CONT’D]

Miss. Code. § 77-9-235............................................ 10

Miss. Code. § 77-9-236............................................ 10

Mo. Stat. § 71.013 ................................................... 10

Mont. Code § 69-14-626 .......................................... 10

N.D. Cent. Code § 49-11-01 .................................... 10

N.D. Cent. Code § 49-11-19 .................................... 10

N.D. Cent. Code § 49-11-19.1 ................................. 10

N.H. Rev. Stat. §§ 373:15–17 ................................. 10

N.J. Stat. § 39:4-94 ................................................. 10

N.Y. R.R. L. § 53-c .................................................. 10

Neb. Rev. Stat. § 17-225 ......................................... 10

Neb. Rev. Stat. § 74-594 ......................................... 10

Neb. Rev. Stat. § 74-1323 ....................................... 10

Ohio Rev. Code § 5589.21 ................................. 10, 11

Ohio Rev. Code § 5589.24 ....................................... 10

Ohio Rev. Code § 5589.211 ..................................... 10

Okla. Stat. Title 66, § 190(A) ................................... 1

xii

STATUTES [CONT’D]

Or. Rev. Stat. § 811.475 ......................................... 10

Or. Rev. Stat §§ 824.222-23 ................................... 10

Pub. L. No. 91-458, 84 Stat. 971

(Oct. 16, 1970) ................................................... 14

Pub. L. No. 104-88, 109 Stat. 803

(Dec. 29, 1995) ................................................... 15

S.C. Code § 57-7-240............................................... 10

S.C. Code § 58-17-4080........................................... 10

S.D. Codified Law § 49-16A-94 .............................. 10

S.D. Codified Law § 49-16A-119 ............................ 10

St. 1854, c. 378 (1854) ............................................ 11

St. 1888, c. 8 § 6980(a) (1888) ................................ 11

St. 1902, § 20139 (1902) ......................................... 11

Tex. Trans. Code § 471.007(a).................................. 7

Utah Code § 41-6a-1204 ......................................... 10

Va. Code § 56-412.1 ................................................ 10

Vt. Stat. tit. 5 § 3582 .............................................. 10

Vt. Stat. tit. 5 §§ 3586–9 ........................................ 10

xiii

STATUTES [CONT’D]

Vt. Stat. tit. 5, § 3587 ............................................. 21

W. Va. Code § 31-2A-2 ............................................ 10

W. Va. Code § 31-2A-3 ............................................ 10

W. Va. Code § 31-2A-6 ............................................ 10

Wis. Stat. § 192.292 ................................................ 10

OTHER AUTHORITIES

49 C.F.R § 213.307 ................................................. 17

49 C.F.R. § 232.305 ................................................ 17

49 C.F.R. § 234.209 ................................................ 17

Ben Goldman, Cong. Rsch. Serv., Locomotive

Idling, Air Quality, and Blocked Crossings 2

(March 4, 2022),

https://crsreports.congress.gov/product/pdf/IF/

IF10978........................................................ 15, 16

Brief of Surface Transportation Board as

Amicus Curiae at 6, Tyrrell, 248 F.3d

517 (No. 99-4505) (“STB Br.”) ..................... 18, 19

Cal. Pub. Util. Comm. Gen. Order No. 135

(1974) ................................................................. 10

xiv

OTHER AUTHORITIES [CONT’D]

David González, Stopped Trains In Houston

Create More Than Just Delays, KHOU11

News, (Feb. 4, 2022),

https://www.khou.com/article/news/stopped-tr

ains-houston/285-4a720b6e-87a7-436f-bb14-8

5b3d0b5e1d8........................................................ 7

Federal Railroad Administration, Blocked

Crossings Fast Facts (Nov. 2021),

https://railroads.dot.gov/sites/fra. dot.gov/files

/2021-11/Blocked%20C rossings%20Fast%20F

acts%20110921.pdf.............................................. 2

Freight Trains Are Getting Longer, and

Additional Information Is Needed to Assess

Their Impact, U.S. Gov. Accountability Office

13 (May 2019) ...................................................... 8

Hearing on Examining Freight Rail Safety,

House Transp. & Infrastructure Comm., at 17

(June 14, 2022),

https://transportation.house.gov/imo/media/do

c/Ferguson%20Testimony.pdf ........................... 20

OTHER AUTHORITIES [CONT’D]

John Charlton, First Responder Expresses

Concern About Trains Stopping on Railroads,

Blocking Routes, WHAS11 News, (Sept. 8,

2022), https://www.whas11.com/article/news/i

nvestigations/focus/freight-trains-first-respon

ders-response-times-kentucky/417-6a1aa594a4d3-48ad-9e 01-ec801c32574e .......................... 6

Mitchell Kirk, Train Troubles: Blocked Crossings

Raising Concerns In Fortville, Greenfield

Reporter, (July 6, 2019), https://www.greenfie

ldreporter.com/2019/07/06/train_troubles_bloc

ked_crossings_raising_concerns_in_fortville ..... 7

News Channel 5 Nashville, Bedford County

Man Dies After Train Blocks Ambulance

Route, (May 20, 2021), https://tinyurl.com/5e

3bacbv .................................................................. 5

Reply Brief of Surface Transportation Board as

Amicus Curiae at 4-5, Tyrrell, 248 F.3d 517

(No. 99-4505) (“STB Reply”) ............................. 19

Miya, Shay, Rural Polk County Town Reignites

Effort To Push Union Pacific To Act After

Baby’s Life Lost, ABC News (Nov. 21, 2021),

https://abc13.com/ktwon-franklin-leggett-texa

s-glover-road-union-pacific-controversy-whatdid-do-to-let-baby-die/11 257624/ ....................... 5

xvi

OTHER AUTHORITIES [CONT’D]

The State of the Rail Workforce, Hearing

Before the House Subcomm. on Railroads,

Pipelines, & Hazardous Materials, 116

Cong. 17, 103 (2019) (Testimony of

Ronald L. Batory) .................................. 17, 20, 22

Supreme Court Rule 37.2(a) .................................... 1

Tracking Toward Zero: Improving Grade

Crossing Safety and Addressing

Community Concerns, Subcomm. On

Railroads, Pipelines, & Hazardous

Materials, 116 Cong. 21–22 (Feb. 5,

2020), https://www.congress.gov/116/meeting/

house/110397/documents/CHRG-116hhrg425

74.pdf ................................................................. 20

Train Blocks Ambulance From Reaching Special

Needs Patient, EMS1 News (Jan. 3, 2018),

https://www.ems1.com/ ambulancesemergency-vehicles/articles/train-blocks-amb

ulance-from-reaching-special-needs-patient-Y

d8DUSo7QO4A3A6f/ ........................................... 6

U.S. Dep’t of Transp., Federal Railroad

Administration Launches Web Portal

For Public to Report Blocked Railroad

Crossings (Dec. 20, 2019), https://railroads.do

t.gov/sites/fra.dot.gov/files/2019-12/FRA%201

5-19%20Blocked%20Crossing%20Portal_0.

pdf .................................................................... ..22

xvii

OTHER AUTHORITIES [CONT’D]

Worst In The Country: Lake Township Tops

In Blocked Crossings, Sentinel Tribune,

(March 10, 2022), https://www.sent-trib.com/2

022/03/10/worst-in-the-country-lake-township

-tops-in-blocked-crossings/ .................................. 8

INTEREST OF THE AMICI STATES*

The States of Indiana, Alabama, Connecticut, Delaware,

Idaho, Kansas, Kentucky, Michigan, Mississippi, Montana,

Nebraska, Oklahoma, Oregon, South Carolina, Texas,

Virginia, Washington, West Virginia, and the District of

Columbia, respectfully submit this brief as amici curiae in

support of Petitioner.

Amici States have a profound interest in, and critical

perspective on, the role of State and local law in securing

safe railroad crossings. For over a century, State and local

authorities have regulated safety at railroad crossings

through anti-blocking laws that limit how long stopped

trains may block crossings. Those laws not only safeguard

public thoroughfares but also ensure passage by emergency

personnel to citizens in need. Yet, the decision below is one

among several stripping States of their longstanding and

“unquestioned police power to regulate grade crossings in

the interest of the public safety.” R.R. Comm’n of Cal. v. S.

Pac. Co., 264 U.S. 331, 341 (1924).

States have traditionally understood anti-blocking statutes as “immediately necessary for the safety and welfare

of the people.” Okla. Stat. tit. 66, § 190(A). One reason for

requiring stopped trains to be “cut, separated, or moved” is

“to clear the crossing upon the approach of any emergency

vehicle.” Fla. Stat. § 351.034. Anti-blocking laws deter railroad carelessness, ensuring local emergency services, such

as firefighters and rescue squads, can quickly respond.

Other reasons include compliance with “governmental

* Pursuant to Supreme Court Rule 37.2(a), counsel of record for all par-

ties received notice of amici’s intention to file this brief at least ten days

before the due date for this brief.

safety regulations,” Iowa Code § 327G.32(1)(d), and efficient commuting along roads not “closed for traffic by a

standing car, train, engine, or other railroad equipment,”

Minn. Stat. § 219.383, lest drivers attempt driving around

the gates to beat a train and avoid potentially long waits,

endangering themselves and others.

Critically, no federal statute or regulation addresses

blocked crossings, so without State and local intervention,

railroads often become roadblocks to life-saving emergency

care—a very real, widespread problem. According to the

Federal Railway Administration, from December 2019 to

September 2021, it received reports of 25,374 blocked

crossings, and 18,801 incidents at 5,773 crossings; yet it

conducted only 906 blocked crossing investigations. See

Federal Railroad Administration, Blocked Crossings Fast

Facts, (Nov. 2021), https://railroads.dot.gov/sites/fra.

dot.gov/files/2021-11/Blocked%20Crossings%20Fast%20F

acts%20110921.pdf. FRA, however, “has no regulatory

authority” to sanction violations it finds because “any

regulations regarding blocked crossings are at the State or

local level.” Id. Among States reporting incidents, Indiana

and Illinois—where courts found anti-blocking laws

preempted—made the top five. Id.; see State v. Norfolk S.

Ry. Co., 107 N.E. 3d 468, 477–78 (Ind. 2018); Eagle Marine

Indus., Inc. v. Union Pac. R.R. Co., 882 N.E.2d 522, 524 (Ill.

2008).

Though a widespread problem, blocked crossings

impose local risks and costs and therefore constitute local

safety hazards that are best addressed by States and

municipalities. Amici States therefore urge the Court to

grant the petition and reverse.

SUMMARY OF ARGUMENT

Anti-blocking laws like Ohio’s facilitate swift access by

municipal fire and rescue services to scenes of local emergencies that often implicate life and death. In recent years,

too many emergency vehicles have arrived too late to save

lives; too many EMTs have risked life and limb climbing

over trains to reach those in need; too many fires have

burned while emergency crews detoured miles out of the

way; and too many communities have been bisected for

days waiting for train crews to unblock intersections.

Blocked grade crossings have serious—sometimes lifethreatening—consequences for everyday Americans.

That is why States have regulated blocked crossings for

over a century. While Congress began regulating aspects of

railroading beginning with the Interstate Commerce Act in

1887, it left safety matters to the States. Whether by statute or common law, States historically regulated railroad

worker safety, train warning signals, railway fencing, train

speed limits, and—as far back as at least 1854—blocked

grade crossings. Thirty-eight States still have anti-blocking laws today. See pp. 8–9, infra.

In 1970, Congress enacted the Federal Railroad Safety

Act (Safety Act) to grant the Federal Railroad Administration (FRA), authority to “prescribe regulations and issue

orders for every area of railroad safety.” 49 U.S.C.

§ 20103(a). Congress, however, preserved nearly all of

States’ regulatory authority over railroad safety. See 49

U.S.C. § 20106(a)(2). As the federal government recognized

two decades later, “[j]urisdiction over railroad-highway

crossings” remained “almost exclusively in the States.”

CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 670 (1993).

In 1995, Congress passed the Interstate Commerce Termination Act (Termination Act), replacing ICC with the

much leaner Surface Transportation Board (STB). The Termination Act conferred “exclusive” jurisdiction on STB

“over transportation by rail carriers,” “rates,” “classifications,” “rules,” “practices,” “services,” “facilities,” “switching,” and “side tracks.” 49 U.S.C. § 10501(b). But the Termination Act did not expressly address safety. It thus necessarily left the States’ longstanding authority to promulgate safety regulations at grade crossings intact.

By the late 1990s, however, courts began to hold that

the Safety Act, Termination Act, or both (there is no agreement as to which) preempt anti-blocking laws. As the Ohio

Supreme Court’s fractured decision below illustrates, no

consensus exists for why anti-blocking laws are preempted.

Neither the Safety Act nor the Termination Act clearly

manifests a congressional intent to strip the States of their

police powers to address blocked crossings. The FRA has

even represented to Congress that it lacks regulatory authority to address such hazards, and STB has in court

briefs disclaimed responsibility for promulgating railroad

safety regulations. In an area of traditional State responsibility, federal law simply does not provide a clear statement of preemption, as this Court’s doctrine requires.

Every grade crossing is different as to traffic congestion,

number of lanes, and proximity to emergency station

houses, among other factors bearing on public safety. As

even the FRA Administrator has testified to Congress,

given such vagaries, States remain best suited to evaluate

and address problems posed by blocked crossings. The

Court should take this case to uphold and to clarify States’

authority to enforce anti-blocking regulations.

REASONS FOR GRANTING THE PETITION

Review is Warranted Because Blocked Crossings Imperil Citizen Safety Across the Country

Absent enforceable anti-blocking statutes and ordinances, railroads have little incentive to remove idle trains

from grade crossings expeditiously. The results can be

tragic, as incidents across the country demonstrate.

1. Last year, in Tennessee’s Bedford County, Bobby Patel suffered a medical emergency that required immediate

attention. When a family member called 911, however, the

dispatched “ambulance reached the tracks, but could not

pass due to a train blocking the crossing.” News Channel 5

Nashville, Bedford County Man Dies After Train Blocks

Ambulance

Route,

(May

20,

2021),

https://tinyurl.com/5e3bacbv. Brett Young, the Director of Bradford

County EMS, noted that two other responders took different routes; “one was blocked by a different train” and “the

other responder was able to reach the home less than two

minutes before the ambulance.” Id. By that time it was too

late and Patel passed away.

In Leggett, Texas, a small town just north of Houston,

“paramedics crawled in between the train cars” at a

blocked crossing, endangering themselves should the train

restart, to respond to a 911 call made on behalf of 11-weekold K’Twon Hudson by his mother. Miya Shay, Rural Polk

County Town Reignites Effort To Push Union Pacific To Act

After Baby’s Life Lost, ABC News (Nov. 21, 2021),

https://abc13.com/ktwon-franklin-leggett-texas-glover-roa

d-union-pacific-controversy-what-did-do-to-let-baby-die/11

257624/. During the “[m]ore than 30 minutes” between that

initial 911 call and “when K’Twon was finally loaded onto

an ambulance,” id., paramedics “ended up doing CPR right

there on the train track” until the train eventually moved.

Id. Notwithstanding these heroic efforts, K’Twon died in

the hospital two days later. Id.

Leggett is not the only town where residents climbed

between rail cars to address a life-threatening emergency.

In Leeds, Alabama, a suburb 20 miles east of Birmingham,

an “ambulance was unable to reach a special needs patient

after a train blocked the only entrance to a subdivision.”

Train Blocks Ambulance From Reaching Special Needs Patient, EMS1 News, (Jan. 3, 2018), https://www.ems1.com/

ambulances-emergency-vehicles/articles/train-blocks-ambulance-from-reaching-special-needs-patient-Yd8DUSo7Q

O4A3A6f/. A local news station showed a cellphone video

“of residents carrying the patient to paramedics, lifting him

between the rail cars,” risking their lives trying to save his.

Id. The man was admitted to the hospital’s intensive care

unit; whether he ever recovered after delayed treatment is

unknown.

Blocked crossings have also hindered firefighters’ ability to reach blazing buildings, such as a burning nursing

home in Lyndon, Kentucky, a Louisville suburb. Despite

the fire department’s location “two to three minutes” away,

a fire truck had to turn around at two blocked crossings,

take the freeway, and arrived “almost 10 minutes” later.

John Charlton, First Responder Expresses Concern About

Trains Stopping on Railroads, Blocking Routes, WHAS11

News, (Sept. 8, 2022), https://www.whas11.com/article/news/investigations/focus/freight-trains-first-responders-response-times-kentucky/417-6a1aa594-a4d3-48ad-9e

01-ec801c32574e. Kentucky law authorizing fines for railroads that block crossings has been enjoined since 2020,

when a federal court held Kentucky’s anti-blocking statutes, Ky. Rev. Stats. §§ 277.200 and 525.140, “expressly

preempted by federal law.” Ass’n of Am. Railroads v. Hatfield, 435 F. Supp. 3d 769, 781 (E.D. Ky. 2020).

Big cities suffer too. “We have about 900 instances each

year,” explained Houston Fire Chief Sam Peña. David

González, Stopped Trains In Houston Create More Than

Just Delays, KHOU11 News, (Feb. 4, 2022),

https://www.khou.com/article/news/stopped-trains-housto

n/285-4a720b6e-87a7-436f-bb14-85b3d0b5e1d8. “In 2021,”

he continued, “we had over 1,300 instances in which our

emergency crews had to reroute because they were being

blocked by a stopped train.” Id. These delays cost first responders valuable minutes in situations where seconds

count, risking human lives and destruction of personal

property. Texas’s anti-blocking statute, Tex. Trans. Code

§ 471.007(a), was found preempted in 2001 and repealed in

2015. See Friberg v. Kan. City S. Ry. Co., 267 F.3d 439, 444

(5th Cir. 2001).

2. Even when they do not put lives at risk, blocked

crossings create hardships for communities.

Consider tiny Fortville, Indiana, a town with a population under five thousand. There, a “parked train blocked

four of Fortville’s five railroad crossings for more than 20

hours” one weekend in 2019. Mitchell Kirk, Train Troubles:

Blocked Crossings Raising Concerns In Fortville, Greenfield Reporter, (July 6, 2019), https://www.greenfieldreporter.com/2019/07/06/train_troubles_blocked_crossings_r

aising_concerns_in_fortville/. According to Fortville’s police chief, Bill Knauer, his department had to contact the

offending railroad company eight times; he “added the train

company did not have another crew scheduled to take the

previous one’s place.” Id. Such slipshod practices, Knauer

lamented, results in railcar obstructions that “essentially

cut our town in half” while his “hands are tied.” Id. Indiana,

however, has been unable to address this problem since

2018, when the Indiana Supreme Court ruled that the Termination Act preempted its anti-blocking statute. See Norfolk S. Ry. Co., 107 N.E. 3d at 478.

A similar story unfolded in Lake Township, Ohio.

There, Police Chief Mark Hummer explained that in March

2022, while Ohio’s anti-blocking statute was stayed pending appeal, “crossings are blocked more now than they’re

open”—even for as long as “83 hours straight”—in part because “[t]rains used to be 60-80 cars long, but now often can

be up to 150.” Worst In The Country: Lake Township Tops

In Blocked Crossings, Sentinel Tribune, (March 10, 2022),

https://www.sent-trib.com/2022/03/10/worst-in-the-countr

y-lake-township-tops-in-blocked-crossings/. According to

the Government Accountability Office, railroads run longer

trains to “increase efficiencies, such as fuel efficiency, and

decrease costs by reducing the number of train crew and

other costs.” Freight Trains Are Getting Longer, and Additional Information Is Needed to Assess Their Impact, U.S.

Gov. Accountability Office 13 (May 2019). But longer trains

block more crossings and “create[] safety risks by causing

emergency response delays and exacerbating dangerous

motorist and pedestrian behavior.” Id. at 28. Lake Township’s Fire Chief, Bruce Moritz, explained “that a blockage

hampered a transport” team on their way to a hospital after a truck accident. Sentinel Tribune, at 1. “Someone’s going to die or someone’s house is going to burn down” due to

an impeded crossing, he warned. Id.

These dire accounts provide a window into the lived experiences of real people across America, especially those in

rural communities who may lose access to life-saving care

whenever a stopped train separates them from paramedics.

Courts have rendered State officials powerless to address

the urgent public safety hazards posed by blocked crossings, sometimes depriving citizens of emergency services.

II.

States Have Long Used Anti-Blocking Laws to

Make Grade Crossings Safer

The tragedies and harms described above do not need

to happen. To be blunt, there is no good reason for courts

to declare State and local anti-blocking laws preempted.

Such laws have historical support and no federal statute

expressly preempts them. Particularly revealing, courts

finding preemption cannot agree on the rationale, which

also means States and municipalities cannot discern

whether any form of anti-blocking law would survive

scrutiny. The Court should take this case to clear up this

unfortunate, unnecessary, and nationally important

problem.

Historically, the States’ core authority extended to regulation of railroad safety hazards, including blocked crossings. Thirty-seven states and the District of Columbia have

adopted statutes or regulations limiting how long trains

may block grade crossings.† Those statutes and regulations

reflect that States have long regulated railroad safety.

† See Ala. Code § 37-8-115; Ariz. Rev. Stat. § 40-852; Ark. Code §§ 23-

12-1007, 1008; Conn. Gen. Stat. §§ 13b-339, 13b-342; Del. Code tit. 17,

§ 701(c); D.C. Mun. Regs. tit. 18, § 2211, 24 § 120; Fla. Stat. §§ 351.03,

351.034; Ga. Code § 46-8-197; Idaho Code § 49-1425; 625 Ill. Comp.

Stat. 5/18c-7402; Ind. Code §§ 8-6-7.5-1, 5-2, 5-3; Iowa Code § 327G.32;

Kan. Stat. §§ 66-273, 274; Ky. Rev. Stat. §§ 277.200, 277.990; La. Stat.

§§ 48:391, 392; Mass. Gen. Laws ch. 160, § 151; Mich. Comp. Laws

1. When America’s first railroad, the Baltimore and

Ohio, opened in 1830, rail safety was a matter for State

common law or of positive law that fell “within the police

power of the States.” Lehigh Valley R. Co. v. Bd. of Pub.

Util. Comm’rs, 278 U.S. 24, 35 (1928). For example, Vermont adopted a statute in 1862 that required trains to blow

a whistle a certain distance from grade crossings. See G.S.

1862, 28, § 55 (codified as amended Vt. Stat. tit. 5 § 3582),

enforced in Wakefield v. Conn. & P.R. Co., 37 Vt. 330, 335–

36 (Vt. 1864). That same decade, the Wisconsin Supreme

Court imposed common law liability for a railroad’s negligent failure to build a fence, which resulted in an infant

being maimed. See Schmidt v. Milwaukee & St. P. Ry. Co.

23 Wis. 186, 194–95 (Wis. 1868). Still in the nineteenth

century, the City of Indianapolis set train speed limits to

four miles per hour. See Cleveland, C., C. & I. Ry. Co. v.

Harrington, 30 N.E. 37, 39 (Ind. 1892). This era also produced the railroad safety case responsible for the famous

fellow-servant rule. See Farwell v. Boston & Worcester R.R.

Corp, 45 Mass. 49 (Mass. 1842).

§ 462.391; Minn. Stat. § 219.383; Miss. Code. §§ 77-9-235, 236; Mo.

Stat. § 71.013; Mont. Code § 69-14-626; Neb. Rev. Stat. §§ 17-225, 74594, 74-1323; N.H. Rev. Stat. §§ 373:15–17; N.J. Stat. § 39:4-94; N.Y.

R.R. L. § 53-c; N.D. Cent. Code §§ 49-11-01, 19, 19.1; Ohio Rev. Code

§§ 5589.21, 5589.24, 5589.211; Or. Rev. Stat. §§ 811.475; 824.222–23;

75 Pa. Cons. Stat. §§ 3713, 6907–08; 39 R.I. Gen. Laws § 39-8-4; S.C.

Code §§ 57-7-240, 58-17-4080; S.D. Codified Laws §§ 49-16A-94, 119;

Utah Code § 41-6a-1204; Vt. Stat. tit. 5 §§ 3586–9; Va. Code § 56-412.1;

W. Va. Code § 31-2A-2, 3, 6; Wis. Stat. § 192.292. See also Cal. Pub.

Util. Comm. Gen. Order No. 135 (1974).

By the turn of the twentieth century and beyond, other

State supreme courts imposed common law liability on railroads for negligent actions and omissions by signal watchmen resulting in injuries to third parties. See, e.g., Evans

v. Lake Shore & M.S.R. Co., 50 N.W. 386, 387 (Mich. 1891);

Hodgin v. S. Ry. Co., 55 S.E. 413, 414 (N.C. 1906); Bickel v.

Penn. R. Co., 217 Pa. 456, 461–62 (Pa. 1907); Webster v.

Roth, 18 N.W.2d 1, 4 (Wis. 1945).

Even in the 1960s, courts could say with confidence that

“jurisdiction to establish safety regulations,” including for

“rail-highway grade-crossing matters,” belonged “exclusively” to States. Am. Trucking Ass’ns, Inc. v. United

States, 242 F. Supp. 597, 601 (D.D.C. 1965), aff’d 382 U.S.

373, 373 (1966).

2. Anti-blocking laws fit this broader historical State

authority. Indeed, some jurisdictions maintained antiblocking laws for over a century—and a few date back to

the mid-nineteenth century. See, e.g., St. 1854, c. 378

(1854) (codified as amended at Mass. Gen. Laws ch. 160,

§ 151 (1971)); Ind. Rev. Stat. § 2176 (1896) (codified as

amended at Ind. Code § 8-6-7.5-1 (1972); Kan. Stat. §§ 66273, 274 (1897); St. 1902, § 20139 (1902) (codified as

amended at Conn. Gen. Stat. § 13b-339 (1949)); St. 1888, c.

8 § 6980(a) (1888) (codified as amended at Ohio Rev. Code

§ 5589.21 (2000)); see also Fay v. Minneapolis, St. P. & S.

S. M. Ry. Co., 111 N.W. 683, 684–85 (Wis. 1907) (affirming

railroad’s common law negligence for blocking a grade

crossing).

Courts enforcing anti-blocking laws have recognized

that holding railroads accountable for blocking grade crossings falls “within the power of the Legislature.” Tracy v.

New York, N.H. & H.R. Co., 72 A. 156, 157 (Conn. 1909);

cf. Pittsburgh, Cincinnati & St. Louis Ry. Co. v. Brown, 67

Ind. 45, 47–48 (Ind. 1879) (observing that regulations of

fencing, whistles, and stops “are police regulations”).

Cases from both the nineteenth and twentieth centuries

demonstrate, in graphic detail, the importance of antiblocking statutes to public safety. In Ohio, a nine-year-old

child attempted to climb through railcars that had blocked

a grade crossing for several minutes. Then, “without warning,” the train jolted “suddenly and violently backward,”

catching the child’s foot “between the couplings of two cars”

and injuring him. Lake Erie & W.R. Co. v. Mackey, 53 41

N.E. 980, 981 (Ohio 1895). The Ohio Supreme Court affirmed a judgment against the railroad, concluding that

Ohio’s anti-blocking statute “clearly implies the duty to remove the obstruction after the lapse of five minutes” and

the railroad’s noncompliance produced a cognizable negligence claim. Id. at 382.

In Wisconsin, a railroad company left a freight train

partially across a grade crossing for nearly thirty minutes

during which time the plaintiff sought to cross the tracks

in a horse-drawn-buggy. See Fay, 111 N.W. at 684–85. During this attempt, a steam valve on the engine suddenly produced an unusual noise that startled the plaintiff’s horse,

throwing the plaintiff from the buggy and injuring him. Id.

The Wisconsin Supreme Court affirmed a verdict for the

plaintiff and concluded that the railroad company “had no

right to leave its engine or cars standing upon the street

for an unnecessary and unreasonable length of time in such

condition as to unnecessarily endanger the safety of travelers thereon.” Id. at 684.

In Kansas, a plaintiff suffered property damage because

the “defendant’s train, standing on the track five minutes,

blocked Wichita’s Central Avenue and delayed the fire department three or four minutes in reaching the fire.”

Walker v. Mo. Pac. Ry. Co., 149 P. 677, 678 (Kan. 1915).

Wichita had ordinances prohibiting railroads from “blocking any street longer than five minutes” and “stopping

trains, engines, or cars, on Central Avenue.” Id. The Kansas Supreme Court reversed a judgment for the railroad,

remanded, and concluded that the ordinances were appropriate under Kansas’s anti-blocking statute. Id.

Through the 1960s, State courts continued to enforce

such laws. In 1940 the Ohio Supreme Court confirmed that

damages “may be recovered” from railroads that block

grade crossings for longer than five minutes. Capelle v.

Baltimore & O. R. Co., 24 N.E.2d 822, 824 (Ohio 1940). In

1966, Massachusetts successfully prosecuted a railroad

company under its anti-blocking statute. See Com. v. N.Y.

Cent. R. Co., 216 N.E.2d 870, 873 (Mass. 1966). Recognizing “the State’s right of control over highways at railroad

crossings,” the Massachusetts Supreme Judicial Court upheld the prosecution lest “local authorities . . . be seriously

crippled in their duty to preserve the public safety.” Id. at

873. In 1967, Harrodsburg, Kentucky adopted an antiblocking ordinance and later successfully prosecuted it. See

City of Harrodsburg v. S. Ry. Co., 455 S.W.2d 576, 577 (Ky.

1969). The Kentucky Court of Appeals observed that

blocked grade crossings “create a very serious safety problem, as well as materially impede the flow of interstate

highway traffic,” and “requir[ing] trains to clear the street

crossings” did not “seriously burden interstate commerce.”

Id. at 580.

Throughout the 1970s and 1980s, and into the 1990s,

State courts still recognized common law accountability for

railroads that blocked grade crossings. In Penn. R.R. Co. v.

Goldenbaum, 269 A.2d 229 (Del. 1970), the court permitted

a widow to sue a railroad after her husband was killed

when their automobile collided with a stopped locomotive

at a grade crossing. In 1979, the Indiana Court of Appeals

affirmed a judgment against a railroad company under the

State’s anti-blocking statute. Norfolk & W. Ry. Co. v. State,

387 N.E.2d 1343, 1345 (Ind. Ct. App. 1979). In 1982, the

Iowa Supreme Court rejected a due process challenge to the

State’s anti-blocking statute. See Chicago & Nw. Transp.

Co. v. Iowa Transp. Regul. Bd., 322 N.W.2d 273, 276 (Iowa

1982). In 1988, the Arizona Supreme Court held that blocking a crossing could constitute negligence, as “common

sense leads to the conclusion that the trier of fact could find

that leaving the train on the crossing was a cause of the

accident.” Terranova v. S. Pac. Transp. Co. 761 P.2d 1029,

1033 (Ariz. 1988). And in 1992 the Illinois Court of Appeals

held that a railroad violated the State’s anti-blocking law.

See People ex. rel. Village of McCook v. Ind. Harbor Belt

R.R. Co., 628 N.E.2d 297, 298 (Ill. Ct. App. 1992).

These cases reflect that, as a matter of statutory and

common law, the States have for decades exercised authority over railroad safety, including through anti-blocking

laws. Courts traditionally understood the States’ police

powers to hold railroads accountable for hazards at blocked

crossings as one feature of this authority. And citizens

could count on States to protect their safe commutes.

III. Neither the Termination Act Nor the Safety Act

Preempts Anti-Blocking Statutes

Congress enacted two statutes that frame the antiblocking discussion: (1) Federal Railroad Safety Act (Safety

Act), Pub. L. No. 91-458, 84 Stat. 971 (Oct. 16, 1970) (codified as amended at 49 U.S.C. § 20101 (2012); and (2) the

Interstate Commerce Commission Termination Act (Termination Act), Pub. L. No. 104-88, 109 Stat. 803 (Dec. 29,

1995). Courts have held that both statutes preempt State

anti-blocking laws but cannot agree on why or how (as

Ohio’s certiorari petition illustrates). One reason for the

disagreement is that nothing in the text of either statute

suggests that Congress intended to strip the States of their

longstanding police powers to regulate stopped trains at

railroad grade crossings. In fact, both statutes expressly

recognize an appropriate berth for State regulation of railroad hazards. States remain the best source of authority to

regulate blocked crossings.

The long history of State railroad regulations—including anti-blocking laws—has implications for the preemption analysis. When a federal enactment threatens a “field

which the States have traditionally occupied,” the analysis

must “start with the assumption that the historic police

powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of

Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230 (1947). Furthermore, when legislation “affect[s] the

federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to

bring into issue, the critical matters involved in the judicial

decision.” United States v. Bass, 404 U.S. 336, 349 (1971).

Neither the Termination Act nor the Safety Act contains a “clear and manifest” statement that preempts antiblocking laws. In fact, “no federal laws or regulations specifically concerning highway-rail crossings blocked by

trains” exist at all. Ben Goldman, Cong. Rsch. Serv., Locomotive Idling, Air Quality, and Blocked Crossings 2 (March

4, 2022), https://crsreports.congress.gov/product/pdf/IF/IF1

0978. Lower court decisions inferring agency preemption

from regulations bearing only indirectly on blocked crossings contravene the presumption against preemption.

A. As federal authorities have themselves

acknowledged, the Safety Act and Termination Act leave anti-blocking laws to States

and localities

1. The Safety Act, enacted in 1970, authorizes the Secretary of Transportation to “prescribe regulations and issue orders for every area of railroad safety.” 49 U.S.C.

§ 20103(a). Yet it expressly preserves State authority to enact laws “related to railroad safety or security” absent a

federal regulation “covering the subject matter of the State

requirement.” Id. § 20106(a)(2). Even after a federal regulation exists, States may adopt “more stringent” measures

when “necessary to eliminate or reduce an essentially local

safety or security hazard” (when consistent with federal

law and not unreasonably burdensome for interstate commerce). Id. §§ 20106(a)(2)(A)–(C).

In CSX Transportation, Inc. v. Easterwood, the Court

recognized the Safety Act’s “considerable solicitude for

state law.” 507 U.S. 658, 665 (1993). It demanded a showing that any preempting federal regulations “cover[]”—by

“substantially subsum[ing]”—the same subject matter as a

State law, not merely “touch upon” or “relate to” it. Id. And

it rejected the argument that an “elliptical reference” in a

federal manual to traffic signs and signals preempted State

negligence law for failure to maintain adequate warning

devices, observing that the manual itself recognized

“[j]urisdiction over railroad-highway crossings reside[d] almost exclusively in the States.” Id. at 669–70. Easterwood

thus reflects that Safety Act preemption “is even more disfavored than preemption generally.” S. Pac. Transp. Co. v.

Pub. Util. Comm’n, 9 F.3d 807, 813 (9th Cir. 1993).

Lower courts inferring that federal train regulations

governing speed limits, 49 C.F.R § 213.307, systems

maintenance, id. § 234.209, and brake testing, id.

§ 232.305, somehow govern blocked crossings are therefore

incorrect. These regulations do not “cover,” let alone “substantially subsume,” the subject matter of anti-blocking

statutes. Former FRA Administrator Ronald Batory, who

administered the Safety Act, acknowledged this in 2019.

He testified that “all” authority to address blocked crossings currently “resides at the State and municipal level,”

“nothing in the existing CFR” empowers FRA “to get involved with the duration of a crossing being blocked by a

train,” and FRA’s role “is to provide technical expertise,

data, education, and outreach to assist all stakeholders in

resolving specific instances of blocked crossings.” The State

of the Rail Workforce, Hearing Before the House Subcomm.

on Railroads, Pipelines, & Hazardous Materials, 116 Cong.

17, 103 (2019) (Testimony of Ronald L. Batory) (“Batory

Testimony”). “Local authorities and railroads,” Batory concluded, “have . . . developed ways to mitigate . . . concerns”

about stopped trains blocking emergency vehicles. Id. at

102.

As Administrator Batory suggests, the cost-benefit calculus implicated by speeding trains differs in kind from

that implicated by idle trains perched across roadways.

Lower courts seem to think that, because one theoretical

means of coping with anti-blocking laws is for a train to go

faster, or to test brakes less frequently, both of which solutions are prohibited by federal law, preemption is implicit.

But the corollary to that reasoning is that the FRA prefers

blocked crossings as a matter of policy—a position unsubstantiated by FRA rulemaking or statements, and one that

Administrator Batory rejects.

2. The Termination Act, enacted in 1996, established

the STB to regulate “transportation by rail,” 49 U.S.C.

§ 10101(1), defining “transportation” to include movement

by “a locomotive, car, . . . or equipment . . . by rail.” Id.

§ 10102(9)(A). “The jurisdiction of the Board over . . . transportation by rail carriers . . . is exclusive.” Id. § 10501(b).

Such exclusive jurisdiction includes “the construction, acquisition, operation, abandonment, or discontinuance of

spur, industrial, team, switching, or side tracks, or facilities” used by railroads. Id. § 10501(b)(2). The Termination

Act, however, cabins its sweep by recognizing that “it is the

policy of the United States Government . . . to minimize the

need for Federal regulatory control over the rail transportation system and to require fair and expeditious regulatory decisions when regulation is required.” Id. § 10101(2)

(emphasis added). STB principally functions as an economic regulator, tasked with, inter alia, determining “adequate revenues,” ensuring “fair wages,” and avoiding “undue concentrations of market power” under the Termination Act. Id. § 10101.

Considering this limited range of exclusive authority,

STB has disclaimed responsibility over blocked grade

crossings. In Tyrrell v. Norfolk S. Ry. Co., which upheld

Ohio’s minimum track clearances as “a permissible gap

filler in the federal rail safety scheme,” 248 F.3d 517, 525

(6th Cir. 2001), STB filed an amicus brief to explain the

interplay among the Safety Act, the Termination Act, federal agencies, and State railroad safety laws. See Brief of

Surface Transportation Board as Amicus Curiae at 6, Tyrrell, 248 F.3d 517 (No. 99-4505) (“STB Br.”). The STB brief

contrasts FRA and STB as distinct entities with distinct

responsibilities. While “FRA has authority to adopt rules

or standards governing the safety of all facets of railroad

operations,” STB “considers safety” only incidentally when

“adjudicating individual cases or regulating non-safety aspects of railroad operations.” Id. at 8 (emphasis added).

Critically, STB did not interpret the Termination Act—

its authorizing legislation—to regulate or confer power to

regulate railroad safety. See STB Br., at 9–16. STB’s brief

explained that, where FRA does not regulate, “States may

impose safety regulations.” Id. at 17. Indeed, it admonished, court decisions holding that the Termination Act

preempts State safety laws “would create significant confusion” and cause STB to “be flooded with requests from

states and localities regarding the types of railroad safety

matters . . . that are not part of the Board’s economic regulation” responsibilities. Id. at 20–21. Yet because FRA has

not promulgated a uniform national regulation, “the express preemption provision in the [Safety Act], at 49 U.S.C.

§ 20106, specifically allows a role for state regulation.” Reply Brief of Surface Transportation Board as Amicus Curiae at 4–5, Tyrrell, 248 F.3d 517 (No. 99-4505) (“STB Reply”) (emphasis added) (footnote omitted).

In short, a cycle of confusion has ensued: STB says FRA

has authority over grade crossings, FRA disclaims it, deferring to the States, but courts preclude State action. The result is a regulatory void this Court should now address.

B. States are best positioned to address local

challenges presented by blocked crossings

That Congress left safety regulations to the States

makes sense. Each grade crossing is “unique unto itself,

based on the number of tracks and the number of lanes of

traffic” involved, meaning blockages present challenges

unique to each part of the country and each community

within a State. Batory Testimony, at 18.

For example, a blocked crossing in a “heavily urbanized

environment,” like the San Gabriel Valley, “see[s] up to

2,000 vehicle-hour delays, meaning it is the equivalent of

2,000 vehicles idling for an hour.” Tracking Toward Zero:

Improving Grade Crossing Safety and Addressing Community Concerns, Subcomm. on Railroads, Pipelines, & Hazardous Materials, 116 Cong. 21–22 (Feb. 5, 2020),

https://www.congress.gov/116/meeting/house/110397/documents/CHRG-116hhrg42574.pdf (testimony of Mark Christoffels, Chief Engineer, San Gabriel Valley Council of Governments). Frustrated motorists may try “driving around

the gates” to beat a train to the crossing rather than endure

long waits—almost certainly “resulting in accidents.” Id. at

22.

Rural communities also suffer, but in different ways.

They may have fewer roadways, meaning a blocked crossing “obstructing emergency vehicle[s]” may force those vehicles “miles out of their way” to “respond to a fire, accident

or medical crisis.” Hearing on Examining Freight Rail

Safety, House Transp. & Infrastructure Comm., at 17 (June

14, 2022), https://transportation.house.gov/imo/media/doc

/Ferguson%20Testimony.pdf (testimony of SMART Transportation Division President Jeremy Ferguson). What

works for Los Angeles may fail in Leggett.

State legislators, considering this reality, tailored antiblocking statutes to their communities. Representing

smaller districts within each State than their federal counterparts, these legislators bring uniquely local perspectives

to legislation. For example, Vermont prohibited railroads

from blocking “a highway or road required for farm use at

rail level” “for a longer period than five minutes at any one

time” but exempted “any grade crossings . . . extending

through the city of Rutland between the River Street underpass and the Pine Street overpass” and “the grade crossing in the town of Norton.” Vt. Stat. tit. 5, § 3587. Thus,

Vermont legislators, considering the needs of affected communities, determined that some crossings deserve different

treatment and crafted a statute to meet that objective.

Iowa proceeded differently. Rather than prescribe exemptions like Vermont, it delegated to “political subdivision[s]” special authority to “pass an ordinance regulating

the length of time a specific crossing may be blocked” whenever a subdivision “demonstrates that an ordinance is necessary for public safety or convenience.” Iowa Code

§ 327G.32(3). “Public safety or convenience may include,

but is not limited to, high traffic density at a specific crossing of a main artery or interference with the flow of authorized emergency vehicles.” Id. § 327G.32(4). This approach,

subject to certain restrictions, allows municipalities to

ameliorate conditions known to them that may have eluded

State legislators.

Illinois set statewide standards based on population

and peak hours. For instance, “[i]n a county with a population of greater than 1,000,000, as determined by the most

recent federal census, during the hours of 7:00 a.m.

through 9:00 a.m. and 4:00 p.m. through 6:00 p.m. it is un-

lawful for a rail carrier to permit any single train or railroad car to obstruct public travel at a railroad-highway

grade crossing in excess of a total of 10 minutes during a

30 minute period.” 625 Ill. Comp. Stat. 5/18c-7402(1)(b).

Again, a single approach may not work within individual States, let alone nationwide. “Railroads, states and local jurisdictions,” it follows, “are best positioned to address

blocked highway-rail grade crossings.” U.S. Dep’t of

Transp., Federal Railroad Administration Launches Web

Portal For Public to Report Blocked Railroad Crossings

(Dec. 20, 2019), https://railroads.dot.gov/sites/fra.dot.gov

/files/2019-12/FRA%2015-19%20Blocked%20Crossing%20

Portal_0.pdf (quoting FRA Administrator Ronald Batory).

Even “FRA does not believe a federal, one-size-fits-all solution would effectively address the issue.” Batory Testimony, at 103.

A collection of fractured decisions from lower courts

have left the States without the maneuverability afforded

by the Safety Act, harming communities. Grade crossings

remain unregulated, imperiling citizens, now “unprotected

by either state or federal law,” who lack recourse to hold

railroads accountable. Thiele v. Norfolk & W. Ry. Co., 68

F.3d 179, 184 (7th Cir. 1995). The Court should take this

case to resolve whether States, in the name of public safety,

retain anti-blocking authority.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Office of the Indiana

Attorney General

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

*Counsel of Record

THEODORE E. ROKITA

Attorney General

THOMAS M. FISHER*

Solicitor General

JAMES A. BARTA

Deputy Solicitor

General

MELINDA R. HOLMES

RAZI S. LANE

Deputy Attorneys

General

Counsel for Amici States

Dated: December 15, 2022

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

WILLIAM TONG

Attorney General

State of Connecticut

KATHY JENNINGS

Attorney General

State of Delaware

KARL A. RACINE

Attorney General

District of Columbia

LAWRENCE WASDEN

Attorney General

State of Idaho

DEREK SCHMIDT

Attorney General

State of Kansas

DANIEL CAMERON

Attorney General

Commonwealth of

Kentucky

DANA NESSEL

Attorney General

State of Michigan

LYNN FITCH

Attorney General

State of Mississippi

AUSTIN KNUDSEN

Attorney General

State of Montana

DOUG PETERSON

Attorney General

State of Nebraska

JOHN M. O’CONNOR

Attorney General

State of Oklahoma

ELLEN F. ROSENBLUM

Attorney General

State of Oregon

ALAN WILSON

Attorney General

State of South Carolina

KEN PAXTON

Attorney General

State of Texas

JASON MIYARES

Attorney General

Commonwealth of

Virginia

BOB FERGUSON

Attorney General

State of Washington

PATRICK MORRISEY

Attorney General

State of West Virginia

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.