Opposition Brief — Hester v. CSX Transportation, Inc.

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No. 95-791 j :

In The ah ‘

Suprene Court of the United States

October Term, 1995

ALVIA E. HESTER, SR. and BRENDA HESTER, Individually

and BRENDA HESTER, as Executrix of the Estate of ALVIA

E. HESTER, JR., Deceased,

Petitioners,

VS.

CSX TRANSPORTATION, INC.,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

RAYMOND L. BROWN

Counsel of Record

W. MARK EDWARDS

BROWN & WATT, P.A.

Attorneys for Respondent

3112 Canty Street

P.O. Box 2220

Pascagoula, Mississippi 39569-2220

(601) 762-0035

“ prgelaie (800) 3 APPEAL (800) 5 APPEAL « (800) BRIEF 21

QUESTIONS PRESENTED

Is proof required beyond the fact that federal funds

participated in an FHWA-approved project for the installation of

grade crossing traffic control device in order to preempt a state-

law negligence claim based on a railroad’s failure to determine

the need for, and to install, additional devices at the crossing

under CSX Transportation, Inc. v. Easterwood, __U.S.__, 1135S.

Ct. 1732 (1993)?

LIST OF PARTIES

. Alvia E. Hester, Sr., Plaintiff-Petitioner

. Brenda Hester, Plaintiff-Petitioner

- Mark D. Lumpkin, Counsel for Petitioner

. Paul S. Minor, Counsel for Petitioner

. William S. Guy, Counsel for Petitioner

. Raymond L. Brown, Counsel for Respondent

. Patrick R. Buchanan, Counsel for Respondent

W. Mark Edwards, Counsel for Respondent

CSX Transportation, Inc., Defendant-Respondent.

CSX Transportation, Inc. lists the following non-wholly

owned subsidiaries, pursuant to Supreme Court Rule 29(6).

y a

Sea-Land Logistics, Inc.

Baronial Transportation Corporation

Akron Union Passenger Depot Company

Allegheny and Western Railway Company

. Wesjax Development Company

Augusta and Summerville Railroad Company

iii

7. The Baltimore and Cumberland Valley Railroad

Expansion Company

8. Beaver Street Tower Company

9. Belt Railway Company of Chicago

10.

ll.

12.

13.

14.

16.

17.

18.

19.

20.

21.

22.

23.

Central Florida Pipeline Corporation

Central Transfer Railway and Storage Company

Charlotte Terminal Company

The Cleveland Terminal and Valley Railroad Company

The Central Railroad Company of South Carolina

Green Real Estate Company

Paducah and Illinois Railroad Company

TTX Company Delaware

Dayton and Michigan Railroad Company

Four Rivers Transportation, Inc.

The Home Avenue Railroad Company

The Lake Front Dock and Railroad Terminal Company

Midland United Corporation

Nicholas, Fayette and Greenbriar Railroad Company

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

Norfolk and Portsmouth Belt Line Railroad Company

North Charleston Terminal Company

Terminal Railroad Association of St. Louis

Mahoning State Line Railroad Company

The Tylerdale Connecting Railroad Company

Winston-Salem Southbound Railway Company

Woodstock and Blockton Railway Company

General Distribution Services Company

Helm-Atlantic Associates, L.P.

Energy Dominion

Yukon Pacific Corporation

Yukon Pacific Company, L.P.

James Center Development Company

Mid Allegheny Corporation

Glebe Road Associates

Glebe Road II Associates

Glebe Road III Associates

LTD.

. Harbour Associates

. One James Center Associates

. Richmond Center Associates

. Richmond Center Associates II

. St. George Seaport Associates

. Second Street Limited Partnerships

. Two James Center Limited Partnerships

. Washington Harbour Associates Limited Partnerships

. CSX Professional Services, Inc.

. Leasing Corporation of Amerlca Inc.

. Encompass

. GLVE Management Corporation

. GLVE Management Limited Partnerships

. Genoa Partners

. Railroad Association Insurance Ltd.

. Tortuga Casualty Company (5)

. Transportation and Railroad Assurance Company,

CSX Transportation, Inc. has listed only its United States

non-wholly owned subsidiaries, in the interest of economy. CSX

has many foreign non-wholly owned subsidiaries, a listing of

which will be provided upon request of the Court.

vii

TABLE OF CONTENTS

Page

Questions Presented ..........- eee eee rece receecees i

ER OUTIEES cc cvccccccsscenceveneeosadesesocces ii

Table CE COMNGMEB oc ccccccccccccscrccccccsccsesees vil

Tbe OF CHROME 2. ccc ccc cece cccccccccccccccccess Viii

Opinions Below ...........- ee eee eee eeeeeeeeeeees l

Sentmtes ImvOlved ...ccccccccccccccccccccccvcccces 2

Statement of the Case .............- PTreT TTT Ce 14

Reasons for Denyingthe Writ .........---eeeeeeeees 15

I. There is no real conflict between the Hester and

Shots DeciSiOaS. 2... cccccccccccccceccccces 15

II. Recently proposed regulations support the denial

OF ORNUBERTE. 2c ccccccccccescccccvesecesesss 20

Ce. vc weeresvetedneeeetereeuntearsean 23

Contents

Page

TABLE OF CITATIONS

Cases Cited:

CSX Transportation, Inc. v. Easterwood, __ U.S. _.» 1138.

Gs RUE dob cdecdekecdcecessnn i, 1, 16,19, 20,21,22

Elrod v. Burlington Northern Railroad Company, 68 F.3d

PPE SEEN 56 6s vebdSe sekdaccdbecedes. ]

Hester v. CSX Transportation, Inc., 61 F.3d 382 (5th Cir.

WOO eenbhee kn tiets Bi astokd- acdsee 1,15, 18,19

Shots v. CSX Transportation, Inc., 38 F.3d 304 (7th Cir.

SU pekececedeissonsGbncnenioesoel 2, 15, 16, 17, 18, 19

Statutes Cited:

SPUSL. §IOGPIG9Z) onc ccccccccccccccsccceoc. 14,18

23 U.S.C. §§ 109(d) and (e) (1992) .............. 14,15, 18,19

PIU BL. GUD GIG, ooo ccccccccccicccccccccceecs 15, 16

FOU BLL. G4ZE BG cc cccccccccccccccccccccocess 15, 16

Other Authorities Cited:

23 C.F.R. §§ 646.204(i) and (j) (1992) ................ 14

SPRY ep cnuaceckddudaiubiiebibevnct 17

_—_——e x Oe

Contents

Page

23 C.F.R. §§ 646.214(b)(3)(i(C) and(D) ............. id

yc lob | | WPPPETTTTETTrTT Tee ee 21

yx fed FM Kk |) PPrrrrrrrerrrrrrerr rr rere 17

et OK yk SP rrrrrTrrrrrrrr errr ieee 14

41 Fed. Reg. 11,649-51 (March2,1995) ...........4.. 21,22

No. 95-791

In The

Supreme Court of the United States

October Term, 1995

ALVIAE. HESTER, SR. and BRENDA HESTER, Individually

and BRENDA HESTER, as Executrix of the Estate of ALVIAE.

HESTER, JR., Deceased,

Petitioners,

vs.

CSX TRANSPORTATION, INC.

Respondent.

On Petition for Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

OPINIONS BELOW

The United States Court of Appeals for the Fifth Circuit

rendered an opinion in this case consistent with this Court’s

analysis in CSX Transportation, Inc. v. Easterwood, 113 S. Ct.

1732 (1993). The opinion of the Fifth Circuit, reported as Hester

v. CSX Transportation, Inc.,61 F.3d 382 (Sth Cir. 1995), and the

progeny it has generated, i.e., Elrod v. Burlington Northern

Railroad Company, 68 F.3d 241 (8th Cir. 1995), are not in direct

conflict with the decision of the United States Court of Appeals

for the Seventh Circuit in Shots v. CSX Transportation, Inc., 38

F.3d 304 (7th Cir. 1994), due to the radically different factual

underpinnings of these cases.

STATUTES INVOLVED

23 U.S.C. § 106. Plans, specifications, and estimates.

(a) Except as provided in section 117 of

this title, the State highway department shall

submit to the Secretary for his approval, as

soon as practicable after program approval,

such surveys, plans, specifications, and

estimates foreach Proposed project included

in an approved program as the Secretary may

require. The Secretary shall act upon such

surveys, plans, specifications, and estimates

4s soon as practicable after the same have

been submitted, and his approval of any such

project shall be deemed a contractual

obligation of the Federal Government for the

payment of its proportional contribution

thereto. In taking such action, the Secretary

shall be guided by the provisions of section

109 of this title.

(b) In addition to the approval required

under subsection (a) of this section, proposed

specifications for projects for construction

on (1) the Federal-aid secondary system,

except in States where all public roads and

highways are under the control and

supervision of the State highway department,

and (2) the Federal-aid urban system, shall be

determined by the State highway department

and the appropriate local road officials in

cooperation with each other.

for construction engineering shall not exceed

15 percent of the total estimated cost of a

project financed with Federal-aid highway

funds, after excluding from such total

estimate cost, the estimated costs of rights-

of-way, preliminary engineering, and

construction engineering.

(d) In such cases as the Secretary

determines advisable, plans, specifications,

and estimates for proposed projects on any

Federal-aid system shall be accompanied by

a value engineering or other cost reduction

analysis.

23 U.S.C. § 109. Standards.

(a) The Secretary shall not approve plans

and specifications for proposed projects on

any Federal-aid system if they fail to provide

for a facility (1) that will adequately meed the

existing and probable future traffic needs and

conditions in a manner conducive to safety,

durability, and economy of maintenance; (2)

that will be designed and constructed in

accordance with standards best suited to

accomplish the foregoing objectives and to

conform to the particular needs of each

locality.

(b) The geometric and construction

standards to be adopted for the Interstate

System shall be those approved by the

Secretary in cooperation with the State

highway departments. Such standards, as

applied to each actual construction project,

shall be adequate to enable such project to

accommodate the types and volumes of

traffic anticipated for such project for the

twenty-year period commencing on the date

of approval by the Secretary, under section

106 of this title, of the pans, specifications,

and estimates for actual construction of such

project. Such standards shall in all cases

provide for at least four lanes of traffic. The

right-of-way width of the Interstate System

shall be adequate to permit construction of

projects on the Interstate System to such

standards. The Secretary shall apply such

standards uniformly throughout all the

States.

system in which Federal funds participate

shall be constructed according to

specifications that will provide all-weather

service and permit maintenance at a

reasonable cost.

(d) On any highway project in which

Federal funds hereafter participate, or on any

such project constructed since December 20,

1944, the location, form and character of

informational, regulatory and warning signs,

curb and pavement or other markings, and

a a

traffic signals installed or placed by any

public authority or other agency, shall be

subject to the approval of the State highway

department with the concurrence of the

Secretary, who is directed to concur only in

such installations as will promote the safe

and efficient utilization of the highways.

(e) No funds shall be approved for

expenditure on any Federal-aid highway, or

highway affected under chapter 2 of this title,

unless proper safety protective devices

complying with safety standards determined

by the Secretary at that time as being

adequate shall be installed or be in operation

at any highway and railroad grade crossing or

drawbridge on that portion of the highway

with respect to which such expenditures are

to be made.

(f) The Secretary shall not, as a condition

precedent to his approval under section 106

of this title, require any State to acquire title

to, or control of, any marginal land along the

proposed highway in addition to that

reasonably necessary for road surfaces,

median strips, bikeways, gutters, ditches,

and side slopes, and of sufficient width to

provide service roads for adjacent property to

permit safe access at controlled locations in

order to expedite traffic, promote safety, and

minimize roadside parking.

(g) The Secretary shal] issue within 30

days after the day of enactment of the

Federal-Aid Highway Act of 1970 guidelines

for minimizing possible soil erosion from

highway construction. Such guidelines shall

apply to all proposed projects with respect to

which plans, specifications, and estimates

are approved by the Secretary after the

issuance of such guidelines.

(h) Not later than July 1, 1972, the

Secretary, after consultation with

appropriate Federal and State officials, shall

submit to Congress, and not later than 90 days

after such submission, promulgate

guidelines designed to assure that possible

adverse economic, social, and environmental

effects relating to any proposed project on

any Federal-aid system have been fully

considered in developing such project, and

that the final decisions on the project are

made in the best overall public interest,

taking into consideration the need for fast,

safe and efficient transportation, public

services, and the costs of eliminating or

minimizing such adverse effects and the

following:

(1) air, noise, and water pollution;

(2) destruction or disruption of

man-made and natural resources,

aesthetic values, community cohesion

and the availability of public facilities

and services;

(3) adverse employment effects,

and tax and property value losses;

(4) injurious displacement of

people, businesses and farms; and

(5) disruption of desirable

community and regional growth. Such

guidelines shall apply to all proposed

projects with respect to which plans,

specifications and estimates are

approved by the Secretary after the

issuance of such guidelines.

(i) The Secretary, after consultation with

appropriate Federal, State, and local

officials, shall develop and promulgate

standards for highway noise levels

compatible with different land uses and after

July 1, 1972, shall not approve plans and

specifications for any proposed project on

any Federal-aid system for which location

approval has not yet been secured unless he

determines that such plans and specifications

include adequate measures to implement the

appropriate noise level standards. The

Secretary, after consultation with the

Administrator of the Environmental

Protection Agency and appropriate Federal,

State, and local officials, may promulgate

standards for the control of highway noise

level standards for highways on any Federal-

aid system for which project approval has

been secured prior to July 1, 1972. The

Secretary may approve any project on a

Federal-aid system to which noise-level

standards are made applicable under the

preceding sentence for the purpose of

carrying out such standards. Such project

may include, but is not limited to, the

acquisition of additional rights-of-way, the

construction of physical barriers, and

landscaping. Sums apportioned for the

Federal-aid system on which such project

will be located shall be available to finance

the Federal share of such project. Such

project shall be deemed a highway project for

all purposes of this title.

(j) The Secretary, after consultation with

the Administrator of the Environmental

Protection Agency, shall develop and

promulgate guidelines to assure that

highways constructed pursuant to this title

are consistent with any approved plan for the

implementation of any ambient air quality

standard for any air quality control region

designated pursuant to the Clean Air Act, as

amended.

(k) The Secretary shall not approve any

project involving approaches to a bridge

under this title, if such project and bridge will

significantly affect the traffic volume and the

highway system of a contiguous State

without first taking into full consideration the

views of that State.

(1)(1) In determining whether any right-

of-way on any Federal-aid system should be

used for accommodating any utility facility,

the Secretary shall —

(A) first ascertain the effect such

use will have on highway and traffic

safety, since in no case shall any use be

authorized or otherwise permitted,

under this or any other provision of

law, which would adversely affect

safety;

(B) evaluate the direct and indirect

environmental and economic effects

of any loss of productive agricultural

land or any impairment of the

productivity of any agricultural land

which would result from the

disapproval of the use of such right-

of-way for the accommodation of

such utility facility; and

and economic effects together with

any interference with or impairment

of the use of the highway in such right-

of-way which would result from the

use of such right-of-way for the

accommodation of such utility

facility.

(2) For the purpose of this subsection —

(A) The term “utility facility”

means any privately, publicly, or

cooperatively owned line, facility, or

system for producing, transmitting, or

distributing communications, power,

electricity, light, heat, gas, oil, crude

projects, water, steam, waste, storm

water not connected with highway

drainage, or any other similar

commodity, including any fire or

police signal system or street lighting

system, which directly or indirectly

serves the public; and

(B) The term “right-of-way”

means any real property, or interest

therein, acquired, dedicated, or

reserved for the construction,

operation, and maintenance of a

highway.

(m) The Secretary shall issue guidelines

describing the criteria applicable to the

Interstate System in order to insure that the

condition of these routes is maintained at the

‘evel required by the purposes for which they

were designed. The initial guidelines shall be

issued no later than October 1, 1979.

(n) The Secretary shall not approve any

project under this title that will result in the

severance or destruction of an existing major

route for nonmotorized transportation traffic

and light motorcycles, unless such project

provides a reasonably alternate route or such

a route exists.

(oO) It is the intent of Congress that any

project for resurfacing, restoring, or

rehabilitating any highway, other than a

highway access to which is fully controlled,

in which Federal Funds participate shall be

constructed in accordance with standards to

preserve and extend the service life of

highways and enhance roadway safety.

23 U.S.C. § 110. Project agreements.

(a) As soon as practicable after the plans,

specifications, and estimates for a specific

project have been approved, the Secretary

shall enter into a formal project agreement

with the State highway department

concerning the construction and

maintenance of such project. Such project

agreement shall make provision for State

funds required for the State's pro rata share of

the cost of construction of such project and

for the maintenance thereof after completion

of construction.

(b) The Secretary may rely upon

representations made by the State highway

. department with respect to the arrangements

) or agreements made by the State highway

department and appropriate local officials

where a part of the project is to be constructed

at the expense of, or in cooperation with,

local subdivisions of the State.

en gn i a

23 C.F.R. § 646.204. Definitions.

For the purposes of this subpart, the

following definitions apply:

i ae A tt Be cl ee a a

(a) Railroad shall mean all rail carriers,

publicly-owned, private, and common

carriers, including line haul freight and

passenger railroads, switching and terminal

railroads and passenger carrying railroads

such as rapid transit, commuter and street

railroads.

(b) Utility shall mean the lines and

facilities for producing, transmitting or

distributing communications, power,

electricity, light, heat, gas, oil, water, steam,

sewer and similar commodities.

utility company including any wholly owned

or controlled subsidiary thereof.

(d) ‘G’ funds signify those Federal-aid

highway funds which, pursuant to 23 U.S.C.

120(d), may be used for projects for the

elimination of hazards of railroad-highway

crossings not to exceed 10 percent of

Federal-aid funds apportioned in accordance

with 23 U.S.C. 104.

(¢) Preliminary engineering shall mean

the work necessary to produce construction

plans, specifications, and estimates to the

degree of completeness required for

undertaking construction thereunder,

including locating, surveying, designing,

and related work.

(f) Construction shall mean the actual

physical construction to improve or

eliminate a railroad-highway grade crossing

or accomplish other railroad involved work.

(g) A diagnostic team means a group of

knowledgeable representatives of the parties

of interest in a railroad highway crossing ora

group of crossings.

(h) Main line railroad track means a track

of a principal line of a railroad, including

extensions through yards, upon which trains

are operated by timetable or train order or

both, or the use of which is governed by block

signals or by centralized traffic control.

(i) Passive warning devices means those

types of traffic control devices, including

signs, markings and other devices, located at

or in advance of grade crossings to indicate

the presence of a crossing but which do not

change aspect upon the approach or presence

of a train.

(j) Active warning devices means those

traffic control devices activated by the

approach or presence of a train, such as

flashing light signals, automatic gates and

similar devices, as well as manually operated

devices and crossing watchmen, all of which

display to motorists positive warning of the

approach or presence of a train.

STATEMENT OF THE CASE

On July 22, 1989, Petitioner’s decedent, AlviaE. Hester, Jr.,

was a passenger in an automobile which failed to stop foraCSX

locomotive and train at the Hatley Circle crossing in Orange

Grove, Jackson County, Mississippi.' (R. 175-177). The Hatley

Circle crossing, prior to the date of the accident, had received

upgraded warnings in the form of advance warning signs,

advance pavement markings, and reflectorized crossbucks.

(R. 784-822; 841-843). These warnings were within the federal

definition of passive warning devices under 23 C.F.R.

§§ 646.204(i) and (j) (1992). The warnings were approved prior

to installation by the FHWA. (R. 961-967). Likewise, the

warnings installed at this crossing, among others, were

subsequently approved by the FHWA after its statewide

inspection. (R. 805-809; 817-818). The warning devices

approved and installed at the Hatley Circle crossing were paid for

by a federal safety funding program. (R. 789-790). Pursuant to

the federal regulatory scheme, the State of Mississippi was

required, as soon as practicable after program approval, to

submit surveys, plans and cost estimates for each individual

project that was to be included in a federally funded safety

program to the Secretary of Transportation. 23 U.S.C. § 106(a)

(1992). After the transmission of the plans and specifications,

they must be approved as adequate by the Secretary. 23 U.S.C

§§ 109(d)and (e) (1992).

1. Despite the assertions of the Hesters, Hatley Circle is not ahigh speed

crossing. 49 C.F.R. §213.9 authorizes a speed of only 60 m.p.h. for freight

trains on the class 4 track at the subject crossing. Pursuant to 49 C.F.R. §213.9,

speeds of 80-110 mph may be authorized for Class 5 and 6 track, respectively.

Therefore, as the regulations indicate, the maximum authorized speed at

Hatley Circle is only slightly higher than one-half of the possible federal

authorized speeds. Hatley Circle is not a high speed crossing. Therefore, the

provisions of 23 C.F.R. $$ 646.214(b)(3)(iM(C) and (D) do not apply to this

crossing. /d.

Pursuant to the agreement between the State of Mississippi

and the federal government, which provided the federal funds for

the pavement markings, the State of Mississippi contractually

agreed that it would not permit any warnings to be installed

which did not conform with the federal requirements. (R. 964 at

§ 11). Further, CSX demonstrated that it participated in the

diagnostic review process for the Hatley Circle crossing. (R.

848-849; 999). These diagnostic recommendations were

likewise required to be approved pursuant to the regulations

prior to the expenditure of federal funds. 23 U.S.C. §§ 109(d) and

(e) (1992).

Considering the above information, the District Court held,

pursuant to CS X's Motion to Reconsider, that the Hesters’ claims

against CSX for alleged inadequate warning devices at the

Hatley Circle crossing were preempted by the Federal Rail

Safety Act of 1970 (FRSA), 45 U.S.C. § 421 et seq. and the

Highway Safety Act of 1973 (HSA), 23 U.S.C. § 130 et seq. This

matter was then appealed to the United States Court of Appeals

for the Fifth Circuit, which affirmed the District Court’s

findings. The Hesters then petitioned for certiorari in this Court,

perceiving a false conflict between the Fifth Circuit’s decision in

Hester, and the United States Court of Appeals for the Seventh

Circuit’s decision in Shots v. CSX Transportation, Inc., 38 F.3d

304 (7th Cir. 1994). CSX respectfully submits that there is no

such conflict, given an examination of the respective records.

REASONS FOR DENYING THE WRIT

THERE IS NO REAL CONFLICT BETWEEN THE

HESTER AND SHOTS DECISIONS.

The Hesters assert that the decision of the Fifth Circuit in

Hester presents a direct conflict with the decision of the Seventh

Circuit in Shots v. CSX Transportation, Inc. , 38 F.3d 304 (7th Cir.

1994), on the issue of federal preemption. However, a simple

analysis of the record below, contrasted with the Shots opinion,

demonstrates that, at best, there is only an illusory conflict due to

the radically dissimilar factual backgrounds of the two cases.

The basis for all preemption analysis is the Federal Rail

Safety Act of 1970 (FRSA), 45 U.S.C. § 421 et seq. and the

Highway Safety Act of 1973 (HSA), 23 U.S.C. § 130 et seq., as

well as the regulations issued pursuant to these acts. This Court

made the importance of the regulations abundantly clear in

Easterwood, when it held:

.. .23 CFR §§ 646.214(b)(3) and (4)... do

establish requirements as to the installation

of particular warning devices. Examination

of these regulations demonstrates that, when

they are applicable, state tort law is

preempted.

***

In short, for projects in which federal funds

participate in the installation of warning

devices, the Secretary has determined the

devices to be installed and the means by

which railroads are to participate in their

selection. The Secretary’s regulations

therefore cover the subject matter of state law

which, like the tort law on which respondent

relies, seeks to impose an independent duty

on a railroad to identify and/or repair

dangerous crossings.

Easterwood, 113 S.Ct. at 1740-41 (emphasis added).

ipiaaia

In Shots, the only evidence of record was the IndDot-L&N

(the predecessor of CSX) Master Agreement for the crossbuck

project. Shots, 38 F.3d at 308. The agreement (contract) was

created and signed by IndDOT and L&N prior to the issuance of

23 C.F.R. § 646.214 (covering devices to be installed where

federal funds participate in projects for the installation of grade

crossing traffic control devices). Shots, 38 F.3d at 306. The

agreement was approved by the FHWA/Secretary of

Transportation only five days after the regulations were issued

and without a recommendation by a diagnostic team.

Clearly, the Shots decision was decided in a vacuum, since

the decision is based on an analysis of a DOT-railroad master

agreement which was written before the promulgation of 23

C.F.R. § 646.214 in 1975, and no other documentation was

available to the Seventh Circuit. Because 14 years had passed

between the project and the accident, there was virtually no

factual information available for the Shots project. Notably, in

contrast to the present case, Shots could not discuss whether the

State DOT had a diagnostic team, had begun its required hazard

rankings/priority listings for grade crossings,’ or even what was

done with respect to the project.

Because no proof was available, the Seventh Circuit in Shots

was forced to decide the preemption issue solely on an analysis of

the IndDOT L&N agreement, in order to determine whether or

not FHWA made any determination of the devices to be installed

at the crossing when it approved the agreement for the state-wide

project. Given that the agreement central to the Shots analysis

predated the pertinent federal regulations, the Seventh Circuit

2. 23 C.F.R. § 924.9(a)(4) specifically requires that state DOT

improvement projects consider the relative hazard of railroad grade crossings

based on a hazard index formula, and that subsequent projects be undertaken

on the basis of a priority system developed by the state DOT. /d.

did not analyze the effect of 23 U.S.C. §§ 109(d) and (e), and

concluded that FHWA approval of the project was something less

than a determination of the adequacy of the traffic control

devices. Shots, 38 F.3d at 309. These provisions of Section 109

provide that the Secretary may only concur in “such installations

as will promote the safe and efficient use of the highways,” and

that federal funds shall not be approved for expenditure “unless

proper safety protective devices complying with safety

standards determined by the Secretary at that time as being

adequate shall be installed... atany. . . railroad grade crossing

.. . with respect to which such expenditures are to be made.” /d.

In the case sub judice, the MDOT contractually agreed with

FHWA to comply with 23 U.S.C. and all FHWA regulations, and

in § 11 specifically acknowledged the requirements of 23 U.S.C.

§ 109(d). (R. 963-64).

The record in the District Court, and considered by the Fifth

Circuit in Hester, is remarkably different from the factual

vacuum present in Shots. The record here demonstrates that the

Hatley Circle crossing, prior to the date of the accident, had

received upgraded warnings in the form of advance warning

signs, advance pavement markings, and reflectorized

crossbucks. (R. 784-822; 841-843). The warnings were

approved prior to installation by the FHWA. (R. 961-967).

Likewise, the warnings installed at this crossing, among others,

were subsequently approved by the FHWA after its statewide

inspection. (R. 805-809; 817-818). The warning devices

installed at the Hatley Circle crossing were paid for by a federal

safety funding program. (R. 789-790). Pursuant to the federal

regulatory scheme, the State of Mississippi was required, as soon

as practicable after program approval, to submit surveys, plans

and cost estimates for each individual project included in a

federally funded safety program to the Secretary of

Transportation. 23 U.S.C. § 106(a) (1992). After the

transmission of the plans and specifications, they were required

sop pe

ott iced

to be approved as adequate by the Secretary. 23 U.S.C. § 109(d)

& (e) (1992).?

Pursuant to the agreement between the State of Mississippi

and the federal government which provided the federal funds for

the pavement markings, the State of Mississippi contractually

agreed that it would not permit any warnings to be installed

which did not conform with the federal requirements. (R. 964 at

§ 11). Further, CSX demonstrated that it participated in the

diagnostic review process for the Hatley Circle crossing. (R.

848-849; 999). These diagnostic recommendations were

likewise required to be approved pursuant to the regulations

prior to the expenditure of federal funds. 23 U.S.C. §§ 109(d) and

(e) (1992).

The records in the Shots and Hester cases are in stark

contrast to each other. The Hester record contains all of the

information that the Seventh Circuit lacked to guide its analysis

in Shots. Had this information been present in Shots, and had the

Seventh Circuit considered the application of 23 U.S.C.

§§ 109(d) and (e)*, there is no doubt that this Court’s decision in

3. As the secretary has made a determination as to the adequacy of the

devices at the Hatley Circle crossing, even the Shots opinion would prevent the

post-decision challenge the Hesters are attempting. Shots, 38 F.3d at 308.

4. This approach is the same as taken by the Solicitor General that

“federal funding of an improvement project is the sole trigger of federal

preemption” which was adopted by this Court in Easterwood. The Solicitor

General argued that:

The scope of 23 C.F.R. 646.214(b) indicated that for

_ federally funded projects the Secretary has covered the

subject matter of what safety devices are appropriate.

The regulations require gate arms in certain

circumstances, and requires FHWA approval of the

(Cont'd)

Easterwood would have been followed. Therefore, it can be seen

that there is no real conflict between the Fifth and Seventh

Circuits with regard to the preemption issue. Therefore, this

Court should deny the Petition for Certiorari.

RECENTLY PROPOSED REGULATIONS SUPPORT

THE DENIAL OF CERTIORARI.

It is important to note that, after the case sub judice was

decided, the Secretary of Transportation proposed federal

regulations which would clarify the scope and timing of the

preemption of a railroad’s common law duty to either evaluate or

improve the adequacy of warning devices at a grade crossing. On

March 2, 1995, the Federal Railroad Administration proposed

regulations that specifically address the allocation of

responsibilities between the federal government, the states, and

the railroads. These proposed regulations are instructive as to the

intent of the Department of Transportation in this area.

The sum and substance of these proposed regulations is that

the existence of the federal program, and the participation of the

railroad in this program, should preempt any state law duties

imposed on railroads to provide additional warning devices at

(Cont'd)

safety devices in all other circumstances. Thus, the

warning devices in place at a crossing improved with

federal funds have, by definition, been specifically

found to be adequate under a regulation issued by the

secretary. Any state rule that more or different crossing

devices were necessary at a federally funded crossing

is therefore preempted.

Brief of the United States As Amicus Curiae, p. 27, filed in CSX

Transportation, Inc. v. Easterwood, U.S. __ , 113 S. Ct. 1732.

railroad grade crossings. 41 Fed. Reg. 11,649 (March 2, 1995).

These regulations would make plain that the various state

highway and transportation departments, such as the Mississippi

Department of Transportation, and not the railroads, are best

qualified to assume the responsibility of deciding when and how

to improve grade crossing safety.

According to the Secretary of Transportation, decision

making by the states, exclusive of the railroads, is the present

federal system. 23 C.F.R. § 924. Under the proposed new

regulations, this system will continue in operation. 41 Fed. Reg.

at 11,649-51. In an explicit final clarification of the preemptive

effect of the current and proposed regulations, the Secretary

specifically noted that the proposed regulations would

“substantially subsume” the subject matter of railroads’

selection and installation of highway-rail grade crossing

warning systems. . .”, therefore preempting state common law.

41 Fed. Reg. at 11,651.

In Easterwood, this Court concluded that it was “not

prepared to find preemption based solely on the strength of the

general mandate of 23 C.F.R. pt. 924”. Easterwood, 113°.Ct. at

1740. The Secretary's proposed regulations, which should soon

become law, call this part of Easterwood’s rationale into doubt.

In fact, in his commentary on the proposed rules, the Secretary of

Transportation discussed and expressed a contrary view as to this

aspect of Easterwood. 41 Fed. Reg. at 11,651-52. The proposed

regulations would correct that portion of Easterwood. In the

view of the Secretary, the entire state-driven system of ranking

grade crossing hazards and prioritizing the greatest crossing

hazards for elimination through improved warning devices

triggers federal preemption of common law claims.* According

5. The regulatory scheme advocated by the Secretary of Transportation

is, in his view, the only way to ensure the investment of “grade crossing

(Cont'd)

to the Secretary, preemption occurs before federal approval or

funding of particular devices. Thus, this Court's focus in

Easterwood, on federal funding and approval of particular

projects as the key preemption events was, according to the

Secretary, misplaced. 41 Fed. Reg. 11,651-52.

As may be seen, the proposed regulations would effectively

make inapplicable this Court's decision in Easterwood, which

held that a railroad’s state law duties could complement the

federal program's procedures for evaluating, rating and

upgrading grade crossings. The implication of the Secretary of

Transportation’s proposed regulation is clear: it mitigates

heavily against a grant of certiorari.

If the Secretary’s proposed regulations are adopted, then the

real issue in this case, the effect of the requirement that the

Secretary of Transportation approve the level of protection at

crossings where federal funds are used, will have ostensibly been

answered by the regulations for all future cases. The questions

then proposed in this genre of cases will turn to the correct

application of the new regulations. Any decision by this Court in

the interim period will impact, at most, only an handful of cases

which are currently pending. In the alternative, if the proposed

regulations are not adopted, other courts will have an

opportunity to consider the preemption issue based on more fully

developed factual records. If the pseudo-conflict urged by the

Petitioners does in fact emerge in subsequent cases, this Court

(should it decide that the issue deserves consideration) will then

have the benefit of those courts’ analyses and the issues will have

been more fully framed.

(Cont'd)

improvement funds where the most lives will be saved and the most injuries

prevented.” 41 Fed. Reg. at 11,651. Petitioners’ inadequate warnings claim,

however, would entirely abrogate the laudable safety effort of the regulatory

system.

This Court is the final arbiter of the most significant

constitutional questions presented in American jurisprudence.

As such, the Court faces serious demands on available timie and

resources. This Court should not grant certiorari in the present

situation, where the decision of the Court may very well be of no

precedential value. In the interest of comity and judicial

economy, it would seem more prudent for this Court to wait and

sec if the regulations proposed by the Secretary of Transportation

are adopted, before the Court decides if it needs to address the

very narrow issue of federal preemption at grade crossings raised

by Petitioners in this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

RAYMOND L. BROWN

Counsel of Record

W. MARK EDWARDS

BROWN & WATT, P.A.

Attorneys for Respondent

3112 Canty Street

P.O. Box 2220

Pascagoula, Mississippi 39569-2220

(601) 762-0035

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.