Amicus Curiae Brief — Easterwood v. CSX Transportation (No. 91-1206)

Nos. 91-790 and 91-1206 j

~_ . » -

—~ a |

IN THE

Supreme Court of the United Srates

OCTOBER TERM, 1992

CSX TRANSPORTATION, INC.,

Petitioner,

v.

LIZZIE BEATRICE EASTERWOOD,

Respondent.

LIZZIE BEATRICE EASTERWOOD.,

Cross-Petitioner,

V.

CSX TRANSPORTATION, INC.,

Cross-Respondent.

On Writs of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF AMICUS CURIAE OF

NATIONAL RAILROAD PASSENGER CORPORATION

IN SUPPORT OF PETITIONER/CROSS-RESPONDENT

CSX TRANSPORTATION, INC.

Stephen C. Rogers Paul F. Mickey, Jr.*

Charles E. Mandolia Alvin Dunn

National Railroad Passenger Shaw, Pittman, Potts &

Corporation Trowbridge

60 Massachusetts Avenue. N.E. 2300 N Street, N.W.

Washington, D.C. 20002 Washington, D.C. 20037

(202) 906-3995 (202) 663-8000

Counsel for Amicus

August 27, 1992 *Counsel of Record

Balmar Legal Publishing Services, Washington, D.C... (202) 682-9800

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ................. i

TABLE OF AUTHORITIES ................ il

INTEREST OF AMICUS CURIAE ............ l

STATUTORY AND REGULATORY

DE 6-6. Gb ue ned eketaeeaeesien 7

Statutory Framework .......0000cc2208 7

The Secretary’s Railroad Safety Regulations .... . 8

SUMMARY OF ARGUMENT .............. 12

QE 4 EKER KES £848 13

I. FEDERAL LAW PREEMPTS

MRS. EASTERWOOD’S SPEED CLAIM .... 13

A. The Secretary of Transportation Has

Promulgated Regulations That Cover

the Subject Matter of Train Speeds

Through Grade Crossings ........... 15

B. The State Common Law Rule

Mrs. Easterwood Seeks to Enforce

Does Not Fit Within the Savings

Provision of Section434 ........... 17

1. The Rule Mrs. Easterwood

Seeks to Enforce Does Not

Address a “Local Safety

Hazard” Within the

Meaning of Section 434........... 18

2. The Rule Mrs. Easterwood

Seeks to Enforce Would

Be Incompatible with the

Secretary's Speed Regulations ...... 20

CORRES ch hee ee se ee hasnenet 23

TABLE OF AUTHORITIES

Cases Page

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

er a Gls é bh pp hp 8 ee 8 8 8 13

Central of Georgia Railroad Co. v. Markert,

410 S.E.2d 437 (Ga. App.), cert. denied, 200

a a 21

Chicago & North Western Transportation

Co. v. Kalo Brick & Tile Co., 450

Ts ais SS yo ste ee ee 8 15

Cipollone v. Liggett Group, Inc., 112 §. Ct. 2608

ees sa bs os 6 6 6 8 8 13, 14, 15

Consolidated Rail Corp. v. Smith, 664 F. Supp.

CE EE ea ee 3

Easterwood v. CSX Transportation, Inc., 933 F.2d

1548 (11th Cir. 1991), cert. granted, 112 S. Ct.

EEE ee ee passim

Florida East Coast Railway Co. v. Griffin,

566 So. 2d 1321 (Fla. Dist. Ct.

DP Uhh «ee ses ebb eeccseseces 21

Florida Lime & Avocado Growers, Inc. v. Paul, 373

EE EN ee 16

FMC Corp. v. Holliday, 111 S. Ct. 403 (1990) ...... 13

Hillsborough County v. Automated Medical :

Laboratories, Inc., 471 U.S. 707 (1985) ....... 13

Hines v. Davidowitz, 312 U.S.52 (1941) ......... 13

~ Illinois v. City of Milwaukee, 406 U.S.91 (1972) ..... 14

Ingersoll-Rand Co. v. McClendon, 111 S. Ct.

EE Ce sg sg 5 o's oe ee ec 13

International Paper Co. v. Ouellette, 479 U.S.

Ee Ss pies ops eee ceee 15

eee

Johnson v. Southern Railway Co., 654 F. Supp. 121

EE weccccaesneseeeer

Jones v. Rath Packing Co., 430 U.S. 519

Cc es ae 6 ok 6 as ee 088 6 ows

Lara v. National Railroad Passenger Corp., No.

CIV. H. 85-697, 1986 WL 15725 (N.D. Ind.

I arate ae en

Morales v. TWA, 112 S. Ct. 2031 (1992) ......

Napier v. Atlantic Coast Line Railroad Co., 272

EE 3 esos 6 A bids 6.0 66 06 ¢

National Railroad Passenger Corp. v. City of

Everett, No. C89-834R (W.D. Wash. Oct. 4,

a ee ee

National Railroad Passenger Corp. v. Town of

Broussard, Civ. No. 91-0012 (W.D. La.

| Tank aed pa aegis

National Railroad Passenger Corp. v. Township of

Pennsauken, Civ. No. 89-1552 (D.N.J.

ST +5666 6b ¥.46.0-% © 0 ¢.0 0.8

Norfolk & Western Railway Co. v. American Train

Dispatchers Ass'n, 111 §. Ct. 1156

A een ee ee

TLS i 6 @ 6s. w-6 ee 6 ©6040 00 ¢%

San Diego Building Trades Council v. Garmon, 359

EE 66 bib < 6660.0 6.600 0%

Sisk v. National Railroad Passenger Corp., 647 F.

Supp. 861 (D. Kan. 1986)... .......2..

Southern Pacific Transportation Co. v. St. Charles

Parish Police Jury, 569 F. Supp. 1174 (E.D.

en oe enc ae Oo 6 6 4 G88

iv

Page

Southern Pacific Transportation Co. v. Town of

Baldwin, 685 F. Supp. 601 (W.D.

TN IS eS ays eee ee 3

Constitutions

Fg ge > re ae ee 17

Statutes

Department of Transportation and Related Agencies

Appropriations Act, 1992, Pub. L. No.

102-143, 105 Stat. 917 (1991) 2... 0... .22... 2

Federal Railroad Safety and Hazardous Materials

Transportation Control Act, 45 U.S.C.

$§ 421-445 (1988) .................. 7

MUSE OURO .. 2... cc cee 7

45 U.S.C. §431(1988) ................ 7

45 U.S.C. § 433(a) (1988) .......020...., 7

45 U.S.C. § 433(b) (1988) ........... 7, 8,19

MUSC. GCOS ............. passim

Rail Passenger Service Act, 45 U.S.C.

ee

45 U.S.C. § 50la(6) (1988) .............. 2

45 U.S.C. § S0la(8) (1988)... 2.2.0 2

45 U.S.C. § SOl(a) (1988) .............. 2

45 U.S.C. § 541 (1988) ..........0..... 2

45 U.S.C. § 543(a(1(A) (1988) 2... 2

45 U.S.C. § 548 (1988) ................ 5

45 U.S.C. § 561 (1988) .. 2.22.20, 2

45 U.S.C. § 562(e)(1) (1988) .. 2... 2. 2. 2

Page

ee eee 2

PTT CTE ee 2, 16

Regulations and Administrative Notices

ee ee eee eee 20

23 C.F.R. § 646.214(b)(1) (1992) 2... 2.2.0 0222..., 10

23 C.F.R. § 646.214(b)(3)(i) (1992) 2.22. 2. 10

ree RS eee eee 10

23 C.F.R. § 655.603(a) (1992) ............4.. 10

oe | x

Co Rs passim

SOCPR. SSID (IGP) ww wee ce 10, 17, 22

oN ee 20

ol Ne )

Nouce of Proposed Rule Making, 36 Fed. Reg.

IE id ohule Oe aimee cae 6:6. < 9, 12,21

Notice of Proposed Rule Making and Public

Hearing, 37 Fed. Reg. 18,397 (1972) ......... y

Legislative History

H.R. Rep. No. 1194, 91st Cong., 2d Sess. (1970),

reprinted in 1970 U.S.C.C_A.N. 4104 ...... 15, 18

Statement of Rep. Springer, 116 Cong. Rec.

EE ee ee 18

Other Authorities

American Ass'n of State Highway and Transp.

Officials, A Policy on Geometric Design of

Highways and Streets (1990) ............. 20

vi

Page

Federal Highway Admin., U.S. Dep't of Transp..,

Manual on Uniform Traffic Control Devices

for Streets and Highways, adopted as law

at 23 C.F.R. §§ 646.214(b)(1), 655.601 and

PO Ee ay ee passim

Federal Highway Admin., U.S. Dep't of Transp.,

Rail-Highway Crossings Study (1989) .... passim

Federal Highway Admin., U.S. Dep’t of Transp.,

Railroad-Highway Grade Crossing Handbook

SEE cc cpechundwesantacssicrvss wo

Federal R.R. Admin., U.S. Dep't of Transp., Rail-

. Highway Crossing Accident/Incident and In-

ventory BulletinNo.13 (July 1991) ......... 5

Highway Research Bd., Nat'l Coop. Highway Re-

search Program Rep. No. 50, Factors Influenc-

ing Safety at Highway-Rail Grade Crossings

DE 6 6046600804006 648 OS O48 0-8 8 6 20

Interstate Commerce Comm'n, U.S. Dep’t of Com-

merce, Rep. No. 33440, Prevention of Rail-

Highway Grade-Crossing Accidents Involving

Railway Trains and Motor Vehicles, 322 1.C.C.

, SxPrrricey ere ee eee eT eee ee 3,4

National R.R. Passenger Corp., /99/ Annual Report

Sy eee re ee eo Ce eee 5

Nos. 91-790 and 91-1206

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

CSX TRANSPORTATION, INC.,

Petitioner,

Vv.

LIZZIE BEATRICE EASTER WOOD,

Respondent.

LIZZIE BEATRICE EASTERWOOD,

Cross-Petitioner,

Vv.

CSX TRANSPORTATION, INC.,

Cross-Respondent.

On Writs of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF AMICUS CURIAE OF

NATIONAL RAILROAD PASSENGER CORPORATION

IN SUPPORT OF PETITIONER/CROSS-RESPONDENT

CSX TRANSPORTATION, INC.

INTEREST OF AMICUS CURIAE

The National Railroad Passenger Corporation (“Amtrak”’)

is a government-funded corporation created by Congress in

1970 to assume responsibility for operating the country’s inter-

city passenger trains.! Congress has directed Amtrak “to pro-

' In 1970 Congress enacted the Rail Passenger Service Act, Pub. L. No.

91-518, 84 Stat. 1327 (codified at 45 U.S.C. §§ 501-658 (1988)) ((RPSA”),

authonzing the creation of Amtrak as a for-profit corporation responsible

a)

~

vide intercity and commuter rail passenger service, employing

innovative operating and marketing concepts so as to fully

develop the potential of modern rail service in meeting the

Nation's intercity and commuter passenger transportation re-

quirements.” 45 U.S.C. § 541 (1988).

Speed is critical to Amtrak's success. In order to meet its

congressional mandate, Amtrak must be able to provide reliable

high-speed service that will attract a significant ridership. 45

S.C. § SOl(a). Congress has specifically instructed Amtrak

to strive to achieve a system-wide average speed of at least

() m.p.h., 45 U.S.C. § SO 1a(%), and to operate its trains to all

station stops within fifteen minutes of the time established in

public timetables for such operation. 45 U.S.C. § SOla(6).

Recognizing the importance of speed in Amtrak's effort to

attract passengers, Congress included several provisions in the

RPSA encouraging Amtrak to travel at the highest possible

speeds that are consistent with safe and efficient operations.”

45 1.S.C.® 541 (198%). Amtrak inherited routes, personnel. and equipment

from the passenger services of many of the nation’s freight railroads.

including Petitioner CSX Transportation, Inc. (°CSXT"). 45 U.S.C. § S61.

Although Amtrak is not an agency or establishment of the United States

Government, 45 U.S.C. § 541, its annual operating deficits are federally

funded. Department of Transportation and Related Agencies Appropria-

tions Act, 1992, Pub. L. No. 102-143, 105 Stat. 917 (1991), and by statute

the Secretary of Transportation sits as an ex officio member of Amtrak 's

Board of Directors. 45 U.S.C. § 54Map 1A).

‘Two provisions address Amtrak's rights to use track owned by freight

railroads. Because freight trains operate at slower speeds than Amtrak ‘s

trains, Amtrak has priority over freight trains in the use of any given section

of wack. 45 U.S.C. § 562(e)(1). Where freight railroads refuse to permit

Amtrak to operate at higher speeds over their track, Amtrak may petition

the Secretary for an order permitting higher speeds. 45 U.S.C. § S62(f). A

third provision concems state or local speed restrictions that involve local

safety hazards and that impede Amtrak's ability to provide high-speed rail

passenger service. It directs Amtrak to identify these speed restricuions and

to attempt to persuade state and local officials to dea) with the local safety

hazards through other means. 45 U.S.C. § 656.

an

Amtrak has frequently instituted legal action to eliminate

State and local speed restrictions that impede its ability to

provide high-speed rail passenger service and has consistently

persuaded courts to declare them invalid, most often on the

basis of federal preemption. ° Amtrak has challenged speed

restrictions not merely in order to meet its statutory speed and

service goals, but also because, for at least three reasons, slower

speeds are not necessarily safer speeds.

(1) Unlike a car or truck, a train has a limited ability

to reduce its speed in response to a safety hazard.

Even at a speed of 30 m.p.h., by the time a passenger

train engineer discerns an obstacle on the track ahead.

it is generally too late to stop.

(2) Slower speeds may actually increase the risk that

motorists will cause grade crossing accidents. When

National RR Passenger Corp v Town of Broussard, Civ. No

91-0012 (W.D. La. July 2, 1991); National RR Passenger Corp »

Township of Pennsauken, Civ. No. 89-1552 (D.NJ. Oct. 30, 1989). Nation

al RR Passenger Corp vy. City of Everett, No. C89-834R (WD. Wash

Oct. 4, 1989), Consolidated Rail Corp v. Smith, 664 F. Supp. 122% (N_D.

Ind. 1987): Southern Pac Transp Co v Town of Baldwin, 685 F. Supp.

A401 (WD. La. 1987); Southern Pac Transp Co v St Charles Parish Police

Jury, 59 F. Supp. 1174 (E.D. La. 1983). Amtrak has also successfully

challenged speed restrictions sought to be imposed under state common law.

Sisk v National RR Passenger Corp , 6A7 F. Supp. 861 (D. Kan. 1986):

Lara v National RR Passenger Corp, No. CIV. H. 85-697, 1986 WL

15725 (N.D. Ind. May 27, 19%4).

See, eg. Imerstate Commerce Comm'n, U.S. Dep't of Commerce.

Rep. No. 33440, Prevention of Rail-Highway Grade-Crossing Accidents

Involving Railway Trains and Motor Vehicles, 322 LCC. 1, 77 (1964)

(ICC Rep”) (Due to its extreme weight [approximately 1,000 tons), “a

passenger train consisting of eight cars and three diesel units traveling

hetween 45 and 50 miles per hour would require approximately 2,000 feet

within which to stop under emergency application of the train brakes.” ):

Federal Highway Admin., U.S. Dep't of Transp., Railroad-Highway Grade

Crossing Handbook 44 (24 ed. 1986) (“DOT Grade Crossing Handbook” }

(A typical 100-car freight train traveling 6) m.p.h. would require over one

mile to stop inemergency braking.) In addition, sudden deceleration poses

its Own serous safety nsks. See Federal Highway Admin., U.S. Dep't of

4

trains travel at higher speeds, drivers are more likely

to obey the warning devices at grade crossings.

When trains travel more slowly, drivers are more

likely to ignore warning devices and attempt to drive

through the crossing in front of the train in order to

avoid a lengthy delay.

(3) In some circumstances, particularly involving

curved track, reducing train speeds to 25 m.p.h. or

less may increase the chance of derailment.

In large part because it has succeeded in increasing the

speed of its trains, Amtrak is nearing achievement of its statu-

Transp., Rail-Highway Crossings Study, 5-10 (1989) (“DOT C rossings

Study”) (*A train in an emergency braking situation is subject to derailing,

as well as to injury to passengers, and damage to lading, wheels, and brake

systems.”).

See, e.g.. DOT Grade Crossing Handbook at 41:

[S}ome communities have passed ordinances restnctng train

speed for the purpose of improving safety. However, this

practice directly reduces the level of service for highway

traffic and may also affect safety. Because of the longer period

of time during which the crossing is closed to highway traffic,

a motorist may take risks by passing over the crossing just

ahead of a train. In many cases, risks such as these are not

successful and collisions result.

In addition, numerous studies have concluded that motorists, not railroads.

are largely responsible for grade crossing accidents. See, e.g../CC Rep. at

82 (“Now ites the highway, not the railroad, and the motor vehicle, not the

train which creates the [grade crossing] hazard . .. .”); DOT Crossings Study

at 4-20 (“More than half of all rail-highway crossing accidents are the result

of a motorist driving around lowered gates or proceeding through flashing

red lights without stopping.”).

® St. Charles Parish, 569 F. Supp. at 1177 (Crediting expert testimony.

court found that “due to harmonic roll and track/train dynamics, the effect

of reducing train speed to 25 mph or less actually increases the likelihood

of railroad car derailments.”). This problem affects heavy freight trains

most directly.

5

tory speed goal and has been able to enhance the appeal of its

service to the traveling public.’ Amtrak presently provides

intercity rail passenger service in 45 states and serves over

22,000,000 passengers per year.®

Amtrak submits this brief amicus curiae because it has a

Vital interest in the preemptive scope of federal railroad safety

regulations, particularly those concerning train speed. State or

local requirements that forced Amtrak to lower its operating

speeds would cripple Amtrak’s ability to meet Congress's

specific speed goal and Congress’s broader objective that

Amuwak provide efficient rail passenger service at the lowest

possible cost to the federal taxpayer. A requirement that

Amtrak reduce its speed when approaching a grade crossing

would be particularly disruptive. Amtrak trains travel

through 14,485 grade crossings nationwide.? Slowing down

at these crossings would dramatically increase both travel

times and operating expenses, and would do little or nothing

to increase safety.'°

7 Amtrak's System-wide average speed is approximately 55 m.p.h., and

in 1991 its on-time percentage was 77 percent.

* These statistics are set forth in annual reports Amtrak is directed to

submit to the President and the Congress under 45 U.S.C. § 548. See

National R.R. Passenger Corp., /99/ Annual Report (1992). Amtrak also

provides commuter rail passenger service in six states under contracts with

local ansportation authorities, serving over 18,000,000 passengers per

year. /d. :

* See Federal R.R. Admin., U.S. Dep't of Transp., Rail-Highway

Crossing AccidenttIncident and Inventory Bulletin No. 13 (July 1991).

' Amtrak has estimated that reducing its operating speeds at grade

crossings to 30 m.p.h. would lengthen a typical route’s schedule by 36

percent and reduce Amtrak's average speed over that route to 37 m.p.h.

Increases in operating expenses would ultimately be borne by the federal

taxpayer. See supra note 1. As noted above, this serious degradation of

rail passenger service would do little to enhance safety — in all likelihood

a train traveling at 30 m.p.h. still would not be able to stop in time to avoid

a collision with a vehicle that entered the grade crossing — and safety could

well be diminished.

6

Amtrak also has a vital interest in the preemption of state

laws concerning grade crossing safety. Amtrak has been in the

vanguard of efforts to promote safety at grade crossings nation-

wide and has committed substantial resources to Operation

Lifesaver, a national program to educate motorists and

pedestrians about the hazards of grade crossings. As an

operator of passenger service in 45 states, Amtrak has a strong

interest in maintaining a uniform national approach to grade

crossing safety, and in finding solutions that do not needlessly

reduce maximum speeds for passenger trains. !!

This brief deals solely with the preemptive effect of federal

regulations governing train speeds and supports affirmance of

the Court of Appeals in No. 91-1206. Amtrak agrees with the

views of CSXT and amicus curiae Association of American

Railroads (“AAR”) that Respondent Lizzie Beatrice

Easterwood’s grade crossing claim is also preempted, and thus

Amtrak supports reversal of the Court of Appeals in No.

91-720.

'l Even though Amtrak is not responsible for maintaining the vast

majority of the grade crossings it uses, it bears the ultumate financial burden

for any grade crossing accidents involving its trains. Amtrak owns most of

the track over which it operates in the Northeast Corridor (Boston to

Washington, D.C.) and has eliminated nearly all of the grade crossings on

this line. Outside the Northeast Corridor, Amtrak operates over the lines of

private freight railroads, including CSXT, pursuant to agreements entered

into with these railroads when Amtrak commenced operations in 1971.

Under these agreements, Amtrak is required to pay virtually all of the costs

of grade crossing accidents involving its trains, though it has no control over

the protective devices at these grade crossings.

—

STATUTORY AND REGULATORY BACKGROUND

Statutory Framework

| In the late 1960s, Congress became alarmed at the increas-

ing rate and severity of railroad accidents across the nation. In

1970, Congress passed the Federal Railroad Safety and Haz-

ardous Materials Transportation Control Act, Pub. L. No. 91-

458, 84 Stat. 971 (codified as amended at 45 U.S.C. §§ 421-445

( 1988)) (“FRSA”), with the express purpose of substantially

improving railroad safety: “[T]he purpose of [the Act] is to

promote safety in all areas of railroad operations and to reduce

railroad-related accidents, and to reduce deaths and injuries to

persons and to reduce damage to property caused by accidents

involving any carrier of hazardous materials.” 45 U.S.C. § 421.

Congress determined that improving railroad safety required a

comprehensive national approach coordinated by the federal

government. Congress thus directed the Secretary of Transpor-

tation to “(1) prescribe, as necessary, appropriate rules, regula-

tions, orders, and standards for all areas of railroad safety . . ,

and (2) conduct, as necessary, research, development, testing,

evaluation, and training for all areas of railroad Safety.” 45

U.S.C. § 431.

. Congress believed that the grade crossing problem re-

quired particular attention. It directed the Secretary to study

“the problem of eliminating and protecting railroad grade cross-

ings,” 45 U.S.C. § 433(a), and to “undertake a coordinated

effort toward the objective of developing and implementing

solutions to the grade crossing problem... .” 45 U.S.C.

§ 433(b). The Secretary was directed to exercise not only the

authority provided by the FRSA, but also his authority over

highway, traffic, and motor vehicle safety and highway con-

struction. /d.

Congress also determined that the Secretary’s regulations

should have broad preemptive effect. Congress therefore in-

8

cluded in the FRSA an express statement of the Act’s preemp-

tive scope:

The Congress declares that laws, rules, regulations,

orders, and standards relating to railroad safety shall

be nationally uniform to the extent practicable. A

State may adopt or continue in force any law, rule,

regulation, order, or standard relating to railroad

safety until such time as the Secretary has adopted a

rule, regulation, order, or standard covering the sub-

ject matter of such State requirement. A State may

adopt or continue in force an additional or more

Stringent law, rule, regulation, order, or standard

relating to railroad safety when necessary to

eliminate or reduce an essentially local safety hazard,

and when not incompatible with any Federal law,

rule, regulation, order, or standard, and when not

creating an undue burden on interstate commerce.

45 U.S.C. § 434.

The Secretary’s Railroad Safety Regulations

The Secretary has adopted rules that cover virtually every

aspect of railroad operation, address many facets of highway

and street safety, and fill nearly two volumes of the Code of

Federal Regulations.'2 This case concerns only two issues

covered by the Secretary’s regulations — train speed and grade

crossings. As noted above, Amtrak submits this brief solely on

the issue of train speed.

The Secretary’s train speed regulations establish maxi-

mum allowable operating speeds for six separate classes of

track. Passenger trains are subject to one set of speeds (15 to

‘2 The Secretary has delegated to the Federal Railroad Administrator

his authority to carry out his functions under the FRSA, with the exception

of his functions under the Act’s grade crossing provision, 45 U.S.C.

§ 433(b), which concerns highway, traffic, and motor vehicle safety and

highway construction. 49 C.F.R. § 1.49(m) (1991).

9

110 m.p.h.) and freight trains are subject to another (10 to 110

m.p.h.). 49 C.F.R. § 213.9 (1991).” In general, passenger

train speeds are significantly higher than those for freight trains;

for example, on a straight section of Class 4 track, Amtrak is

authorized to operate at 80 m.p.h., while freight trains are

limited to 60 m.p.h. The Secretary has also established a

formula for calculating maximum allowable speeds for both

freight and passenger trains on curved track. 49 CFR.

§ 213.57."

The Secretary considered a broad range of safety data

when setting maximum allowable operating speeds.!5 That he

'° The maximum allowable operating speeds in miles per hour are as

follows:

Over trackthat Themaximum The maximum

meets allofthe allowable allowable

prescribed in speed for freight speed for passenger

this part for— trains is— trains is—

Class 1 track 10 15

Class 2 track 25 30

Class 3 track 40 60

Class 4 track 60 80

Class 5 track 80 90

Class 6 track 110 110

49 CFR. § 213.9.

'* The Secretary originally published speed limits that would apply to

all trains, passenger and freight. Notice of Proposed Rule Making, 36 Fed.

Reg. 11,974, 11,975 (1971). Amtrak petitioned the Secretary to establish

higher speed limits for passenger trains operating over classes 1 through 5

trains can move faster than freight trains over classes 1 through 5 track with

no loss in safety.” Notice of Proposed Rule Making and Public Hearing, 37

Fed. Reg. 18,397, 18,397 (1972).

'S See 36 Fed. Reg. at 11,974. (“[The Secretary] considered informa-

tion available within [the Department] and information as to ‘existing safety

data and standards’ made available to it by representatives of the Association

State regulatory agencies.”).

10

was concerned with numerous safety risks, including grade

crossing accidents as well as derailments, is confirmed by

subsection (c) of 49 C.F.R. § 213.9. That subsection provides

that when the Secretary addresses a railroad’s request for a

maximum operating speed that exceeds 110 m.p.h., he will

consider “performance characteristics of the track, signaling,

grade crossing protection, trespasser control where ap-

propriate,” and other factors in determining whether “the

proposed speed can be sustained in safety.” 49 C.F.R.

§ 213.9(c). In setting maximum speeds, the Secretary was well

aware of prior Department of Transportation and Interstate

Commerce Commission studies suggesting that in many cases

lower speeds could increase the likelihood of grade crossing

accidents and possibly the risk of derailments as well. See

supra note 5.

The Secretary also took into account those accepted prin-

ciples of railroad safety and train dynamics in establishing

comprehensive regulations covering grade crossing safety.

Under the grade crossing regulations, train speed is an impor-

tant consideration in determining what types of warning

devices should be installed at a grade crossing. Federal High-

way Admin., U.S. Dep’t of Transp., Manucl on Uniform Traffic

Control Devices for Streets and Highways 8A-1, adopted as -

law at 23 C.F.R. §§ 646.214(b)(1), 655.601 and .603(a) (1992)

(“MUTCD”’).'© Significantly, the Secretary did not adopt an

approach whereby trains would be required to proceed more

slowly at grade crossings; instead, because that approach was

both impracticable and unlikely to promote safety, the

Secretary chose to allow trains to travel through grade crossings

” Speed is specifically addressed in the Secretary's grade crossing

regulations. For example. the Secretary has concluded that train speed must

be considered when determining whether to install automatic gates with

flashing lights. 23 C.F.R. § 646.214(6)(3)i). See also MUTCD at 8&C-S

(speed considered in setting automatic flashing lights); MUTCD at &B-5

(speed considered in determing appropnate illuminanon).

at speeds deemed safe in light of track characteristics and

configuration, and opted to minimize grade crossing accidents

by prescribing the use of various devices to warn motorists.’

Speed, in other words, was treated as the baseline parameter to

which decisions on other precautions would be accommodated.

The Secretary's determination to take train speed as a

baseline is confirmed by the way his regulations address the

hazard created when different trains traverse a grade crossing

at significantly different speeds. Signals warning motorists of

approaching trains must be timed according to train speed, and

proper timing is critical: too short a warning has obvious

dangers, while too long a warning may encourage motorists to

drive around gates or through signals.'* One way to have

signals timed correctly for all trains would be to require all

trains to travel at the lowest common denominator of authorized

speed. The Secretary adopted quite a different approach: the

regulations allow trains to operate through a grade crossing at

significantly different speeds, and call for the installation of

more sophisticated sensing devices so that faster trains will be

detected and warnings will be given to motorists at the appropri-

ate time. !9 . ;

In adopting regulations on maximum allowable train

speeds, including maximum speeds through grade crossings,

the Secretary made judgments that expressly involved cost-

dd 49 CFR. § 213.9: see also supra note 16.

See DOT Crossings Study at 4-6 (“Care must also be taken to ensure

that the warning ume is not excessive. If the roadway user cannot see the

train approaching . he may attempt to cross the tracks despite the operation

of the flashing light signals — and even lowered gates. if present.”). See

See MUTCD at 8C-5 (“Where the speeds of different trains on a

given track vary considerably under normal operation . Special devices or

curcuits should be installed to provide reasonably uniform nonce in advance

of all rain movements over the crossing.”).

12

benefit calculations. The Secretary recognized specifically that

his speed limit regulations have both costs and benefits:

[E]very safety regulation has a cost factor, either a

direct purchase and operation cost or an indirect cost

resulting from operating at less than maximum ef-

ficiency. Every safety regulation also has a benefit

factor — the increase in safety to the public and

railroad personnel and a benefit to the railroads in

reducing its casualty losses and damage claims. Al-

though the cost of complying with a regulation may

be initially borne by the railroad, it is ulumately paid

by the public. Thus, the cost/benefit determination

to be made by the FRA with respect to a particular

safety requirement is whether the safety benefit to the

public and railroad personnel justifies the ultimate

monetary cost of compliance to the public.

36 Fed. Reg. at 11,974. Recognizing that the public has an

interest in both safety and efficiency, and that train speed is an

important component of efficiency, the Secretary adopted

speed limits that would permit the fastest rate of travel consis-

tent with safe operation. He presumably also recognized that

in setting speeds at the maximum safe level, he was promoting

Congress's statutory goal of allowing intercity passenger trains

to provide enhancec service to the traveling public.

SUMMARY OF ARGUMENT

This case considers whether federal law preempts Mrs.

Easterwood's claim that the CSXT train, though moving well

below the federal maximum track speed, was nevertheless

violating state common law by traveling at an excessive speed

through the Cook Street grade crossing. Amtrak respectfully

submits that her claim is preempted by the FRSA and rules

promulgated by the Secretary of Transportation relating to

railroad safety. Congress has expressly declared in the FRSA

that railroad safety rules should be nationally uniform and that

safety rules promulgated by the Secretary of Transportation

13

shall preempt any state rules covering the same subject matter.

The Secretary has established comprehensive rules for train

speeds, including speeds through grade crossings, and under

the plain language of 45 U.S.C. § 434 those rules preempt

Mrs. Easterwood’s state common law claim.

ARGUMENT

I. FEDERAL LAW PREEMPTS

MRS. EASTERWOOD’S SPEED CLAIM

The Court's preemption principles are well settled.

Whether a federal enactment preempts state law turns on con-

gressional intent, the “‘ultimate touchstone’” of preemption

analysis. Ingersoll-Rand Co. v. McClendon, 111 S. Ct. 478.

482 (1990) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 208 (1985)). To determine congressional intent, the Court

must “begin with the language employed by Congress and the

assumption that the ordinary meaning of that language ac-

curately expresses the legislative purpose.” Morales v. TWA.

112 S. Ct. 2031, 2036 (1992) (quoting FMC Corp. v. Holliday,

111 S. Ct. 403, 407 (1990)).2°

= Congress can indicate its intent to preempt state law in two ways:

(1) expressly. by so stating on the face of the statute. or (2) impliedly, by

enacung rules or regulatons that comprehensively govern an entire field.

such that there is no room for additional regulation by the states. Hillsbor-

ough County v. Automated Medical Labs., Inc., 471 U.S. 707, 713 (1985)

(cating Rice v. Santa Fe Elevator Corp.. 331 U.S. 218, 230 (1947)). Even

if Congress fails to express its intent to displace state law, state law is

preempted to the extent it actually conflicts with federal law. This conflict

often arses when state law “stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of Congress.” Hines v.

Davidowitz, 312 U.S. 52.67 (1941). The Coun in Cipollone noted that when

Congress has included m the statute a provision exphcitly addressing

Preempuon. as Congress did in § 434. there 1s no need to look beyond that

Provision to determine the statute's preempuve scope. Cipollone v Ligget:

Group, Inc.. 112 S. Ct. 2608, 2618 (1992).

14

Here Congress's intent is clear. The FRSA expressly

states that the Secretary of Transportation should promulgate

comprehensive rules covering railroad safety and that all rules

“relating to railroad safety” should, if practicable, be nationally

uniform. 45 U.S.C. § 434.2! The FRSA also expressly provides

that once the Secretary adopts a rule covering a particular

subject matter, all state rules covering that subject matter are

preempted. The FRSA provides an exception to its general

declaration of preemption, but a narrow one: a state rule may

survive only if it addresses “an essentially local safety hazard,”

is not incompatible with federal law, and does not unduly

burden interstate commerce. 45 U.S.C. § 434.

There can be no doubt that the FRSA preempts state

common law — such as the common law duty Mrs. Easterwood

seeks to enforce in this action — as well as state statutory law.

Section 434 preempts any state “law, rule, regulation, order, or

standard relating to railroad safety.” The Court has consistently

held that the phrase “state law,” when given its ordinary mean-

ing, includes cormmon law as well as statutes and regulations.

Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608, 2620 (1992)

(The phrase “requirement or prohibition . . . imposed under

State law” includes “obligations that take the form of conimon

law rules.”); Norfolk & W. Ry. Co. v. American Train Dis-

patchers Ass n, 111 S. Ct. 1156, 1163 (1991) (The phrase “all

other law, including State and municipal law” encompasses

state common law.); Illinois v. City of Milwaukee, 406 U.S. 91,

100 (1972) (The term “laws,” when given its “natural mean-

ing,” includes “claims founded upon . . . common law as well

as those of statutory origin.”).

In this case the plain meaning of the FRSA’s preemption

language — “law, rule, regulation, order, or standard” —

= The Court last term interpreted a similar preemption provision and

held that the ordinary meaning of “relating to” is a broad one and that “the

words thus express a broad pre-emptive purpose.” Morales, 112 S. Ct. at

2037.

15

encompasses state common law. The legislative history of the

FRSA strongly suggests that Congress intended to preempt

common law claims as well as those based on legislation or

regulation.*? Congress recognized, as this Court has often

stated, that the effect of allowing state common law claims to

survive would be to regulate train speeds through jury verdicts

and damage awards. Most recently in Cipollone, the Court

reaffirmed the commonsense point that damage actions can

have the same effect as affirmative regulation: ““The obliga-

tion to pay compensation can be, indeed is designed to be, a

potent method of governing conduct and controlling policy.”

Cipollone, 112 S. Ct. at 2620 (quoting San Diego Bldg. Trades

Council v. Garmon, 359 U.S. 236, 247 (1959)). See also

International Paper Co. v. Ouellette, 479 U.S. 481, 495 (1987).

A. The Secretary of Transportation Has Promul-

gated Regulations That Cover the Subject Mat-

ter of Train Speeds Through Grade Crossings

In accordance with Congress's directive in the FRSA, the

Secretary has adopted comprehensive railroad safety rules. In

particular, he has adopted rules covering train speed. These

rules set “maximum allowable operating speeds” for railroad

travel over nearly all of the nation’s track, including the track

at issue in this case and all of the track Amtrak uses. 49 C_F.R.

§ 213.9. Once the Secretary adopts regulations on the subject

*2 See H.R. Rep. No. 1194, 91st Cong., 2d Sess. (1970), reprinted in

1970 U.S.C.C_A.N. 4104, 4110-11 (“To subject a carrier to enforcement

before a number of different State administrative and judicial systems in

several areas of operation could well result in an undue burden on interstate

commerce.”). See also id. at 4109 (“[S)ubjecting the national rail system

to. . 50 different yudicial and administrative systems” would adversely

affect rail safety.). The language of the House Repont is strikingly similar

to that used by this Court in Chicago & North Western Transportation Co

» Kalo Brick & Tile Co..450U.S. 311, 326 (1981): “A system under which

cach State could. through its courts. umpose on railroad carriers its own

version of reasonable service requirements could hardly be more at odds

with the uniformity contemplated by Congress...”

nee

16

of speed — as he now has — no state may continue in force

any speed rule unless it can fit that rule within section 434’s

savings Clause for local safety hazards.*?

Mrs. Easterwood claims that state law imposes a duty on

CSXT to reduce its speed below the federally authorized speed

limit when traveling through a crossing that has the charac-

teristics of the Cook Street crossing. Her claim involves a state

law concerning a subject matter covered by the Secretary's

regulations — train speed — and thus is preempted unless it

fits within section 434’s savings provision.

Mrs. Easterwood attempts to escape the preemptive effect

of the Secretary's speed regulations by arguing that the

Secretary set train speed limits only to prevent derailments, not

to prevent grade crossing accidents. Her point has no ground-

ing in law or in fact. As the Eleventh Circuit noted, this Court

has made clear that preemption analysis is not concerned with

whether the federal law’s purposes are similar to the state law's

purposes. Easterwood v. CSX Transp., Inc., 933 F.2d 1548,

1554 (11th Cir. 1991), cert. granted, 112 S. Ct. 3024 (1992)

(citing Florida Lime & Avocado Growers, Inc. v. Paul, 373

U.S. 132, 142 (1963)). See also Napier v. Atlantic Coast Line

RR. Co., 272 U.S. 605, 612-13 (1926) (State law is preempted

whenever “federal and state statutes are directed to the same

subject... [,] however commendable or however different their

purpose.”). Preemption analysis turns on Congress’s intent to

preempt and the nature of the federal regulations at issue.

Easterwood, 933 F.2d at 1554.

*° In 1980, Congress directed Amtrak to identify and attempt to

eliminate state and local speed restrictions. 45 U.S.C. § 656. Congress

to a speed restriction, it should take into account “the particular local safety

hazard which is the basis for such restriction... .” 45 U.S.C. § 656

(emphasis added). This language plainly was drafted to parallel the terms

of the savings provision: once the Secretary adopted speed regulations. as

he had well before 1980. state and local speed restrictions could survive

under § 434 only if they were directed to “local safety hazards.”

17

Moreover, the Secretary in fact took into account many

considerations — including grade crossing safety — in promul- .

gating his speed regulations. As explained in greater detail

above, there is substantial interplay between the Secretary's

speed and grade crossing regulations. Significantly, speed is

the constant factor, with grade crossing protections tailored to

speeds, instead of speeds reduced to minimize dangers at grade

crossings. See supra pp. 10-11. The Secretary has expressly

stated that in setting higher train speeds, he must be satisfied

“that the proposed speed can be sustained in safety” and that

his safety concerns are not limited to derailment risk but include

grade crossing protection and trespasser control. 49 C.F.R.

§ 213.9%(c). Accordingly, because the Secretary has spoken on

the issue of train speeds through grade crossings, Mrs. Easter-

wood can prevail only if she can fit her claim within section

434’s savings provision.

B. The State Common Law Rule Mrs. Easterwood

Seeks to Enforce Does Not Fit Within the

Savings Provision of Section 434

In order to fall within the savings provision, a state law

must meet each of three separate requirements: (1) it must be

“necessary to eliminate or reduce an essentially local safety

hazard”; (2) it must not be incompatibie with any federal law

or regulation; and (3) it must not create an undue burden on

interstate commerce. On this record, it is plain that the rule of

law Mrs. Easterwood seeks to enforce fails to meet at least the

first two requirements, and probably does not satisfy the third.24

*4 ‘The undue burden issue was not developed in the district court. and

the caselaw does not offer any guidance as to the meaning of “undue burden”

in § 434. Courts examuning challenges to local speed ordinances brought

under the United States Constitution's Commerce Clause, U.S. Const. art. |.

§ 8. cl. 3, rather than § 434 have consistently held that these ordinances

unduly burden interstate commerce. See Johnson v. Southern Ry. Co., 654

18

1. The Rule Mrs. Easterwood Seeks

to Enforce Does Not Address a

“Local Safety Hazard” Within

the Meaning of Section 434

The state common law rule Mrs. Easterwood invokes does

not address “an essentially local safety hazard.” As the House

Report makes clear, Congress intended “‘local safety hazard” to

be narrowly construed:

The purpose of this . . . provision is to enable the

States to respond to local situations not capable of

being adequately encompassed within uniform na-

tional standards. The States will retain authority to

regulate individual local problems where necessary

to eliminate or reduce essentially local railroad safety

hazards. Since these local hazards would not be

Statewide in character, there is no intent to permit a

State to establish Statewide standards superimposed

on national standards covering the same subject

matter.

H.R. Rep. No. 1194, 1970 U.S.C.C.A.N. at 4117 (emphasis

added).*5

The rule of law Mrs. Easterwood seeks to enforce here —

a general duty of reasonable care — is not focused on a

particular, identifiable local safety hazard. Rather, it is a broad

rule of statewide applicability — precisely the sort of “Statewide

F. Supp. 121, 123 (W.D.N.C. 1987); Southern Pac. Transp. Co. v. St.

Charles Parish Police Jury, 569 F. Supp. 1174, 1179 (E.D. La. 1983).

Because it is apparent that restrictions at the grade crossings Amtrak

traverses would substantially hinder its ability to provide fast, reliable

passenger service, and because the evidence indicates that slow train speeds

do not lead to greater safety (and in many cases diminish safety), see supra

pp. 3-4, the rule of law Mrs. Easterwood asserts would appear to constitute

an undue burden under both § 434 and the Commerce Clause.

*5 Additional legislative history supports a narrow interpretation of

“local safety hazard.” See 116 Cong. Rec. 27,612 (1970) (statement of Rep.

Springer that the savings clause was intended to allow a state to “take charge

of purely local hazards *).

19

standard[] superimposed on national standards covering the

same subject matter” that Congress intended to forbid. The

Eleventh Circuit clearly was correct when it held that the

“savings Clause is irrelevant to the case at hand because a state

does not legislate a general duty of care in order to eliminate a

local safety hazard.” Easterwood, 933 F.2d at 1553 n.3.

Moreover, Mrs. Easterwood’s common law claim addres-

ses a hazard — speeds through grade crossings — that is

“capable of being adequately encompassed within uniform

national standards.” Congress so determined when it declared

that grade crossing safety should be dealt with on a national

level and specifically directed the Secretary to “undertake a

coordinated effort toward the objective of developing and

implementing solutions to the grade crossing problem... .” 45

U.S.C. § 433(b).

In addition, all of the individual elements underlying Mrs.

Easterwood’s speed claim are capable of being adequately

encompassed within uniform national standards, and most in

fact are covered by existing standards.26 Most of the elements

— the curve in the tracks, the vegetation, and the hump —

chiefly concern a motorist’s ability to see an approaching train.

Under the Secretary’s regulations the motorist’s line of sight at

a crossing is an express and significant consideration in deter-

mining what grade crossing protection is appropriate for safe

operation in light of specified train speeds.27 Sight distance

= According to Mrs. Easterwood’s certiorari petition, trains have a

common law duty to slow down at the Cook Street crossing due to “the

numerous hazards at [the] crossing and the large number of motorists who

traverse the crossing ....” The hazards include “a curve in the tracks just

north of Cook Street which allows only 150 feet of sight distance for a

motorist looking up the track . . . [,] the amount of vegetation allowed to

grow along the side of the track, frequently malfunctioning signals which

produce false warnings, and a hump in the crossing which make the tracks

difficult for drivers of large trucks to maneuver.” Easterwood Cert. Pet. at

4.

>

See, e.g., MUTCD at 8B-9 (Whether to use Stop signs at grade

crossings depends, in part, on motorists’ line of sight to an approaching train

20

analysis takes into account not only curves in the track but also

vegetation that hinders visibility and the level of the track

relative to that of the road.?® Accordingly, it is clear that even

the individual elements of Mrs. Easterwood’s speed clair are

capable of being dealt with through uniform national standards.

and thus her claim does not fit within the narrow definition of

“local safety hazard” Congress intended for the Savings

provision.”

2. The Rule Mrs. Easterwood Seeks to

Enforce Would Be Incompatible with

the Secretary’s Speed Regulations

Mrs. Easterwood’s speed claim also fails to meet the

Savings provision’s second requirement: the rule of law she

posits 1s incompatible with the Secretary’s speed regulations.

Mrs. Easterwood’s claim is that CSXT violated its state com-

mon law duty to slow down to a speed that is “reasonable and

and sight distance down the track while at the stop bar.); MUTCD at 8B-5

(Whether to illuminate grade crossing depends, in part, on motorists’ ability

to see trains during hours of darkness.). See also Highway Research Bd.,

Nat'l Coop. Highway Research Program. Rep. No. 50, Factors Influencing

Safety at Highway-Rail Grade Crossings 25 (1968) ( importance of sight

distance in the design and improvement of grade crossings); DOT Crossings

Study at 5-9, 5-10 (same).

°°

See, ex. MUTCD at 8B-5 (Illumination at a crossing may be

required “where the gradient of the vehicular approaches is such that the

headlights of an oncoming vehicle shine under or over the [train] cars.”).

Vegetation at or near the tracks has also been addressed separately by the

Secretary in regulations concerning track maintenance. 49 C_.F.R. § 213.37

(track Owners must contain vegetation so that it does not pose a fire hazard,

obstruct visibility, or create other safety hazards). With regard to Mrs.

Easterwood’s claim conceming the hump in the crossing, standards con-

cerning vertical alignment of the railroad tracks in relation to the roadway

are set forth in American Ass'n of State Highway and Transp. Officials, A

Policy on Geometric Design of Highways and Streets 842-51 ( 1990)

(“AASHTO Policy”). In establishing standards to govern federal aid high-

way projects, the Secretary has adopted the AASHTO Policy as law. 23

CF.R. pt. 625.

°9 With respect to the final “hazard” of Mrs. Easterwood’s speed clairn

— frequenudy malfunctioning signals — the legal analysis is clear. As both

2]

prudent under the circumstances.” The circumstances for

which CSXT allegedly failed to slow down involve no extraor-

dinary conditions that existed on the morning of February 24,

1988; they are present every day at the Cook Street crossing

and, most likely, at hundreds of other crossings in Georgia and

throughout the United States. *° Therefore, the thrust of her state

law Claim is to force trains routinely to pass through the Cook

Street crossing at a speed that is lower than the speed limit set

by the Secretary.

That rule of law plainly is incompatible with the Secre-

tary s regulations. In setting maximum operating speeds the

Secretary expressly engaged in cost-benefit analysis. 36 Fed.

Reg. at 11,974. One of his goals was to authorize the highest

possible speeds consistent with Congress's safety goals. He

thus set speeds as high as he deemed safe in order to authorize

CSXT and AAR note in their briefs, the Savings provision leaves room for

State common law claims alleging violations of federal Safety standards.

including those the Secretary has issued concerning signals. However, Mrs

Easterwood's approach — a legal rule that would effectively require trains

(0 operate at slower speeds — is incompatible with the Secretary's approach

to speeds at grade crossings: moreover, it is undul y burdensome. effectively

requiring all carriers using a line to become familiar with the status of the

home railroad’s maintenance efforts.

*0 A few cases have addressed claims brought under state law that a

railroad failed to reduce its speed when faced with a sudden ané extraordi-

nary dangerous condition or event. Central of Ga.RR. Co. v. Markert, 410

S.E.2d 437, 439 (Ga App. 1991) (claim that railroad employees failed to

take precautions after it was apparent that vehicle was about to cross the

track not preempted), cer’. denied, 200 Ga. App. 895 (1991): Florida E

Coast Ry. v. Griffin, 566 So. 2d 1321, 1324 (Fla. Dist. Ct App. 1990) (claim

that railroad employees failed to issue a Stop order when it became apparent

that children were about to cross the track not preempted). These cases stand

for the proposition that federal !aw will not absolve a railroad of its duty to

act with reasonable care when faced with an extraordinary circumstance or

event such as persons. animals, vehicles, or other obstacles sudden! y appear -

ing in plain view on the roadbed. Because Mrs. Easterwood has not raised

such a claim, the Court need not reach this issue.

a

—

>

trains to operate at those speeds. The Secretary was explicit

that he was establishing speeds that could be safely sustained,

not maximum speeds that were to be reduced routinely based

on recurring operational considerations. See, e.g= 49 C.F.R.

§ 213.9(c). Setting a lower maximum speed is inconsistent

with the purposes of the Secretary’s rules.

Incompatibility is all the more apparent in light of the

Secretary's decision to authorize prescribed speeds through

grade crossings. As Amtrak noted above in response to

Mrs. Easterwood’s arguments that the Secretary’s speed

regulations deal only with the risk of derailment, the Secretary

in fact squarely faced the problem of grade crossings and opted

to build other precautions around prescribed speed limits rather

than to vary speed based on the hazardous characteristics of

each crossing.>! He has adopted speed limits that can be sus-

tained in crossings, with the safety of those crossings assured

through careful review of potential hazards, such as limited

visibility, and the subsequent installation of appropriate warn-

ing devices. A common law rule prescribing lower speeds in

crossings would conflict directly with the Secretary’s chosen

approach.>*

‘1 Asnoted above, one of the precautions that is built around prescribed

speed limits is properly timed warning signals. This element of the

Secretary's regulations highlights a risk of imposing acommon law duty on

railroads to slow down based on varying perceptions of hazards at specific

grade crossings: as tains slow down to promote safety, they may be

traveling at speeds that render the timing of signal circuits inappropriate and

even dangerous. See supra p. 11.

32

Because of this fundamental incompatibility, even in the absence of

§ 434, Mrs. Easterwood’s common law rule wou!d be preempted on the

theory of conflict preemption. Jones v. Rath Packing Co., 430 U.S. 519,

525-26 (1977).

|

23

CONCLUSION

This case presents a clear instance of express federal

preemption. The Secretary’s regulations deal squarely with the

issue of train speeds through grade crossings, and thus there is

no room for Mrs. Easterwood’s claim under section 434. Ac-

cordingly, Amtrak supports affirmance of the Court of Appeals

in No. 91-1206, as well as reversal in No. 91-790.

Respectfully submitted,

Stephen C. Rogers Paul F. Mickey, Jr.*

Charles E. Mandolia Alvin Dunn

National Railroad Passenger Shaw, Pittman, Potts &

Corporation Trowbridge

60 Massachusetts Avenue, N.E. 2300 N Street, N.W.

Washington, D.C. 20002 Washington, D.C. 20037

(202) 906-3995 (202) 663-8000

Counsel for Amicus

August 27, 1992 *Counsel of Record