A Virginia-based rail company must face the state of Indiana in court in a conflict over whether state-issued citations for blocking grade crossings were proper. The Indiana Court of Appeals determined Tuesday that federal law does not preempt state law governing how long a train can block a crossing, so summary judgment to the rail company was not appropriate.
In State of Indiana v. Norfolk Southern Railway Company, 02A03-1607-IF-1524, Norfolk Southern Railway Co. challenged 23 citations the state of Indiana issued against it for violations of Indiana’s blocked-crossing statute. Norfolk does not dispute that its trains blocked crossings for more than 10 minutes on each occasion, a direct violation of the statute, yet moved for summary judgment on the grounds the statute, Indiana Code 8-6-7.5-1, was preempted by the Interstate Commerce Commission Termination Act and the Federal Railroad Safety Act.
The Allen Superior Court agreed and granted summary judgment to Norfolk, finding that on some occasions, such as when switching operations were being performed, the rail company could not prevent blocking crossings for more than 10 minutes. Further, while the trial court wrote Norfolk could “cut” its trains to open grade crossings for motor vehicles, it would take more than 10 minutes to reassemble the trains when crew members are ready to move on.
However, the Indiana Court of Appeals reversed the grant of summary judgment, with Judge Melissa May writing on an issue of first impression that the ICCTA does not bar the blocked-crossing statute because its “silence as to obstruction of traffic bars facial preemption.” She pointed to the decisions in Fayus Entreprises v. BNSF Ry. Co., 602 F.3d 444 (D.C. Cir. 2010) and Adrian & Blissfield R. Co. v. Village of Blissfield, 550 F.3d 533 (6th Cir. 2008), in which circuit courts held that “the care of grade crossings is … within the police power of the states” and, thus, not subject to preemption.
“The ICCTA does not include language regarding regulation of a blocked crossing for traffic regulation purposes,” May wrote. “Without state action, railroads would be allowed to block major thoroughfares for an infinite amount of time because the federal regulation is silent.”
Similarly, the appellate court adopted the holding in the Ohio case of State v. Wheeling & Lake Erie Ry. Co., 743 N.E.2d 513 (Ohio Ct. App. 2000), to find the FRSA does not preempt Indiana’s blocked-crossing statute. The holding in Wheeling, which also addressed FRSA preemption, found that “(n)either the trial court nor appellee has indicated any federal regulation governing this issue, let alone demonstrated the ‘clear and manifest purpose of Congress’ to preempt local regulations on how long a stopped train can block an intersection.”
The appellate court did not address conflict or field preemption in its opinion, as Norfolk did not discuss the application of either. The case was remanded for further proceedings consistent with Tuesday’s opinion.