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From page 170...
... 170 Railroad Legal Issues and Resources SUMMARIES OF STATUTES, REGULATIONS, CASES, AND ARTICLES
From page 172...
... 172 Section D discusses the National Trails Systems Act (Trails Act) and the interim use of railroad rights of way for recreational trails pursuant to the Rails-to-Trails amendment to the Trails Act.
From page 173...
... 173 a rail carrier's public service obligation.' … ‘An abandoned railroad corridor is one that is no longer used for rail service and is removed from the national transportation system.'"781 Statutes and Regulations 2. Procedures Applicable to an Abandonment or Discontinuance Federal law governs "abandonment of rail lines and discontinuance of rail service by common carriers."782 When a railroad carrier subject to the jurisdiction of the STB decides to abandon or discontinue any part of a railroad line, the carrier must file an application with the STB.783 The statute requires an application to provide certain information, including a summary of the reasons for the abandonment or discontinuance and a detailed description of the line or lines that the railroad company is proposing to abandon or discontinue.784 Sections 1152.20 through 1152.29 of the Code of Federal Regulations (C.F.R.)
From page 174...
... 174 impact of the abandonment or discontinuance on the community;788 an environmental impact statement;789 and a draft notice for the Federal Register regarding the rail line that is to be abandoned or discontinued.790 When a railroad files an application there are specific methods of notice that the carrier is required by statute to give.791 Section 10903 also requires that any abandonment or discontinuance of a rail line or lines contain provisions to protect the interests of employees.792 Section 1152.50 of the C.F.R allows a rail carrier to submit a notice of class exemption from the procedures in 49 U.S.C. § 10903, et seq.793 The section includes the procedures that a party seeking an exemption must follow, as well as the process that the STB must follow when determining whether to grant or deny an application for an exemption.794 See part I.B.3 below.
From page 175...
... 175 modifications.796 When the Board approves an application with modifications, the Board may set conditions that it finds are required by public convenience and necessity with which the rail carrier must comply.797 Furthermore, "[i] f the Board finds that the rail properties proposed to be abandoned are appropriate for public purposes and not required for continued rail operations, the properties may be sold, leased, exchanged, or otherwise disposed of only under conditions provided in the order of the Board."798 Finally, the Board may deny outright an application if it fails to "find[]
From page 176...
... 176 the abandonment or discontinuance of a line: (1) an estimate of the subsidy or purchase price needed to keep the rail line operational; (2)
From page 177...
... 177 on the value of the line."808 A subsidy arrangement entered into between a rail carrier and another party that is approved by the Board shall not "remain in effect for more than one year, unless otherwise mutually agreed by the parties."809 Furthermore, for proposed sales, the Board shall determine the price and other terms of sale, except that in no case shall the Board set a price which is below the fair market value of the line (including, unless otherwise mutually agreed, all facilities on the line or portion necessary to provide effective transportation services) ….810 A party that purchases a line may not transfer or discontinue service for two years from the date of purchase, nor may it transfer the line to another party for five years from the date of purchase.811 3.
From page 178...
... 178 Besides being able to commence a proceeding on its own initiative,812 the Board is empowered to specify the effective period of an exemption813 and may revoke an exemption when "necessary to carry out the transportation policy" described in 49 U.S.C.
From page 179...
... 179 Cases 4. Statutory and Common Law Principles for Establishing an Abandonment In Avista Corp.
From page 180...
... 180 declarations of abandonment may not be made retroactively.818 Therefore, after a right of way is abandoned and a public road is not built within a year of the right of way's abandonment the inchoate interests in the land become vested.819 The court affirmed the district court's determination that the railroad had abandoned its right of way.820 5. Recent Railroad Abandonment Decisions by the STB a.
From page 181...
... 181 The Board explained that [u] nder 49 U.S.C.
From page 182...
... 182 b. Request to Authorize a Third Party or Adverse Abandonment of a Line In Paulsboro Refining Company LLC – Adverse Abandonment – in Gloucester County, N.J.831 Paulsboro Refining Company LLC (PRC)
From page 183...
... 183 In view of PRC's dispute with SMS, the Board stated that it "does not allow its jurisdiction to be used as a bar to state law remedies in the absence of an overriding federal interest"836 and that its decision to remove the agency's jurisdiction would enable "the applicant to pursue other legal remedies against the incumbent carrier…."837 Because there was no present or future need for common carrier service, the Board approved the application. The Board rejected SMS's claims that the abandonment should be denied because federal railroad safety regulations would no longer apply.
From page 184...
... 184 c. Denial of Petition to Reopen Declaratory Order Proceeding in the Absence of Changed Conditions or New Evidence In BNSF Railway Company – Petition for Declaratory Order842 the Board followed-up on its 2010 authorization of BNSF to abandon 1.54 miles of a rail line in Oklahoma City, Oklahoma pursuant to 49 U.S.C.
From page 185...
... 185 prior approval.846 Although it was asserted that a shipper Boardman, Inc. (Boardman)
From page 186...
... 186 In response to another party's arguments that the abandonment exemption should be revoked and that BNSF should be required to prepare an EIS, the Board stated that [w] hile abandonments do require environmental review, they generally involve an Environmental Assessment (EA)
From page 187...
... 187 when an application for an exemption is void ab initio, only the rail carrier is prohibited from the use of the exemption.857 The Board is not prevented from "relying upon any part of the record before it that is not false or misleading or … later, upon a proper showing, granting the rail carrier an individual exemption."858 The court ultimately denied Kessler's request to review the Board's decision to exempt BNSF from the abandonment procedures in 49 U.S.C. § 10904 and dismissed Kessler's due process claim.859 7.
From page 188...
... 188 ICC. The decision in Howard v.
From page 189...
... 189 Board did not have the final authority and that the bankruptcy court could make a final determination on whether a rail line may be abandoned adversely.870 In Howard, the First Circuit explained that "[g] enerally, the [Board's]
From page 190...
... 190 proceedings.876 Therefore, the First Circuit affirmed the district court's dismissal of the trustee's request for an "order from the bankruptcy court authorizing the discontinuance of CN's trackage rights and the abandonment of CN's easement."877 The First Circuit further affirmed the STB's order denying the trustee's application for an adverse abandonment and discontinuance.878 9. Preemption of Actions in State Court for Damages Caused by Abandonment of a Rail Line In Chicago & N.W.
From page 191...
... 191 from pressing a state-court action for damages against a regulated carrier when the [ICC] , in approving the carrier's application for abandonment, reaches the merits of the matters the shipper seeks to raise in state court."883 The Court reserved "for another day the question whether such a cause of action lies when no application is made to the Commission."884 The Supreme Court reversed the Iowa Court of Appeals and remanded the case for further proceedings not inconsistent with the Court's opinion.885 C
From page 192...
... 192 In 1976 Congress repealed the 1875 Act when it enacted the Federal Land Policy and Management Act (FLPMA) .889 The FLPMA also repealed some laws known as the pre-1871 Acts under which railroads had been granted rights of way.
From page 193...
... 193 to deal with the problem of state property laws providing for the expiration of easements upon abandonment. As codified at 16 U.S.C.
From page 194...
... 194 2. Whether the Federal Government retains any Ownership in Railroad Rights of Way Granted after 1871 A law review article, written prior to the Brandt case, discussed in part I.C.3, discusses the split in the federal circuit courts of appeals on whether the federal government retains any ownership in railroad rights of way that were granted after 1871, the year in which Congress discontinued granting land to railroad companies in favor of granting rights of way to the companies.900 In 2005, in Hash v.
From page 195...
... 195 of cases has arisen.904 The article agrees with the United States' position that the government may take rights of way abandoned by railroads and reuse them for use as recreational trails without violating the Takings Clause of the Fifth Amendment.905 Case 3. Property Owner's Right after a Railroad's Abandonment of an Easement Marvin M
From page 196...
... 196 its successors or assigns.'"909 However, the patent did not mention what would occur if the right of way were abandoned.910 In 1996, LHP&P's successor, Wyoming and Colorado Railroad, notified the STB that it would abandon the right of way and completed the abandonment in 2004.911 In 2004, the railroad in possession of the right of way properly abandoned it pursuant to the STB's procedures and approval.912 In 2006, the United States sought to quiet title to the abandoned right of way including a right of way over the Brandts' property. However, the Brandt family trust counterclaimed and argued that the right of way "was a mere easement that was extinguished upon abandonment by the railroad, so that, under common law property rules, [the trust]
From page 197...
... 197 parcel."916 Therefore, the Supreme Court reversed the Tenth Circuit and remanded for further proceedings consistent with the Court's opinion.917 Although the government argued that the National Trails System Improvement Act of 1988 preserved the government's interest in abandoned railroad rights of way, the United States had already waived any claim to the right of way by reason of the 1976 land patent to the Brandts twelve years earlier. Thus, "if there is no ‘right, title, interest, [or]
From page 198...
... 198 remain in the United States upon the abandonment or forfeiture of such rights-ofway, or portions thereof, except to the extent that any such right-of-way, or portion thereof, is embraced within a public highway no later than one year after a determination of abandonment or forfeiture, as provided under such section.922 The Rails-to-Trails Act of 1994 (Rails-to-Trails) preserved abandoned railroad rights of way by preventing them from reverting to the original grantor of the easement or the grantor's successor-in-interest.923 Thus, § 1247(d)
From page 199...
... 199 Thus, federal law allows the Secretary of Transportation and the STB on an interim basis to preserve an abandoned railroad right of way as a recreational trail until the right of way is used again for railroad purposes.926 Regulations 2. Requirements for Interim Trail Use of Railroad Right of Way Federal regulations lists the requirements with which a state, political subdivision, or private organization must comply when requesting to use abandoned railroad right of way for interim trail use.927 The requirements include: (1)
From page 200...
... 200 E Whether and When Interim Use as a Recreational Trail of an Abandoned Railroad Right of Way is a Taking under the Fifth Amendment 1.
From page 201...
... 201 Therefore, any claims in excess of $10,000 by property owners against the United States for takings subject to the Fifth Amendment to the Constitution caused by or relating to abutting railroad property must be brought in the Court of Federal Claims.933 The United States District Courts retain concurrent jurisdiction over Tucker Act claims for $10,000 or less.934 Cases 3. Takings Claims against the United States arising under the Trails Act Although the decision has been distinguished by a few lower federal courts, Preseault v.
From page 202...
... 202 The Court's decision observed that the Tucker Act establishes jurisdiction in the Court of Federal Claims for claims based on a federal taking.939 The Court explained that the Tucker Act "is an implied promise to pay just compensation which individual laws need not reiterate" and applies as well to rail-to-trail conversions.940 First, the Court held that it was premature for the petitioners to seek "review of the ICC's order in the … Second Circuit…."941 Second, it was "clear" that the Interstate Commerce Act and the ICC's authority "pre-empt[] the operation and effect of certain state laws that conflict with or interfere with federal authority over the same activity."942 Third, in affirming the Second Circuit's judgment the Court held that the Tucker Act requires that a claim based on a federal taking of property be brought in the Court of Federal Claims and that the Trails Act was a valid exercise of congressional power under the Commerce Clause.943 4.
From page 203...
... 203 the private property interests taken are not free; the Government must pay the just compensation mandated by the Constitution."945 In Toews, the plaintiffs alleged that the city of Clovis took their property in violation of their Fifth Amendment rights by converting an abandoned railroad right of way for use as a recreational trail under the Trails Act. The original deed from the plaintiffs' predecessors-ininterest granted a right of way to the railroad for the use of designated land for railroad purposes but provided that the land would automatically revert to the original property owner or his or her successor-in-interest if the right of way were abandoned.946 After the railroad petitioned the ICC for permission to cease operating a segment of its right of way, the ICC issued a Notice of Interim Trail Use or Abandonment (NITU)
From page 204...
... 204 a state agent" to bring about a taking it is not "absolve[d]
From page 205...
... 205 trails, the government's actions constituted a taking.957 The court granted the plaintiffs' motion for summary judgment with the issue of just compensation left for determination at trial.958 6. Effect of an STB Notice of Interim Trail Use as a Taking When a NITU is issued by the STB pursuant to 16 U.S.C.
From page 206...
... 206 taking.964 The Federal Circuit therefore vacated and remanded the case for a determination of the scope of the easement and whether the easement had been abandoned. Article 7.
From page 207...
... 207 way has been abandoned de jure or de facto 970 and whether the landowner owned the property at the time of the taking.971 The author points out that even if it is not clear whether an abandonment has occurred the statute of limitations for a takings claim under the Trails Act is six years.972 The article further explains that there are three issues to consider when litigating takings claims under the Trails Act.973 The first issue is whether a railroad company acquired land in fee simple or acquired an easement.974 Second, if there is an easement, the scope of the easement must be established to determine whether the federal government is liable.975 When determining the scope of the easement, the question is whether the easement "was limited in its terms to railroad purposes, or whether the terms were less specific, allowing for uses beyond railroad use, and if so what the parameters of the other uses are."976 The third and final issue, although not always necessary, is whether there was an abandonment of the right of way.977 The Federal Circuit has explained that the abandonment issue should be raised only if the scope of the easement cannot be determined and that the issue of abandonment should be raised last;978 thus, 970 Id.
From page 208...
... 208 "the Federal Circuit places the abandonment issue behind the scope of easement issue, indicating [that] courts need only reach the issue if the question of scope is not dispositive."979 Therefore, if the second issue relating to easements has been resolved, the last issue need not be addressed.980 979 Id.
From page 210...
... 210 discrimination and discrimination by a public entity providing services or benefits.983 Railroad employees are protected under the employment section of the ADA.984 The ADA includes provisions that apply to transportation by rail; for example, 42 U.S.C. § 12142 provides that "[it]
From page 211...
... 211 for Individuals with Disabilities,989 have been enacted or promulgated, respectively, to effectuate the ADA's provisions. Cases C
From page 212...
... 212 Circuit agreed that the plaintiff did not establish a prima facie case of disability discrimination and affirmed the district court's grant of a summary judgment for Union Pacific.995 D Disability within the Meaning of the ADA 1.
From page 213...
... 213 within the meaning of the statute.1000 The Tenth Circuit agreed with the district court's determination that when "an individual cannot perform a specific required task in a particular position or positions but can perform other tasks, he is not considered excluded from a ‘class of jobs.'"1001 The appellate court affirmed the district court's grant of a summary judgment for BNSF.1002 2. A Record of or Having Being Regarded as Having an Impairment The ADA defines the term disability to mean with respect to an individual (A)
From page 214...
... 214 instructor, a position he apparently did not secure because the defendant may have wanted instructors with "accident-free work histories" so that they would be "more credible."1007 Coale alleged that he was disabled under the ADA because the defendant regarded him "as having an impairment that substantially limited the major life activity of working…."1008 Coale's discrimination case was based also on what he said was his record of disability.1009 The court concluded, however, that the plaintiff was not disabled "at the time of the events in question."1010 Relying on precedent in the Second Circuit, the court held that under the ADA prior the amendments the plaintiff could not be found to have been ‘regarded by' Defendant in the relevant time period to have had an impairment ‘that substantially limited] one or more of [his]
From page 215...
... 215 mental impairment whether or not the impairment limits or is perceived to limit a major life activity."1012 The court granted the defendant's motion for summary judgment.
From page 216...
... 216 work as an electrician in 2010.1019 For the railroad's actions prior to January 1, 2009 and the ADA amendments, the court found that Gaus did not have a disability under the ADA. The reason was that Norfolk Southern did not regard Gaus as having an impairment that substantially limited major life activities.1020 As Norfolk Southern did not issue its opinion on the matter until 2009, the court determined that Norfolk Southern viewed Gaus's condition as being temporary, rather than permanent, and did not consider his condition as one that rendered him unable to perform a wide range of jobs.1021 However, for events after January 1, 2009, when the ADA amendments were in effect, the court held that there was a genuine issue of material fact regarding whether Norfolk Southern regarded Gaus as having an impairment.1022 In regard to the 2008 amendments, the court observed: In enacting the ADAAA, Congress rejected the narrow interpretation of disability adopted by the Supreme Court in Toyota Motor, specifically, the Supreme Court's standard regarding "substantially limits," finding that this standard "has created an inappropriately high level of limitation necessary to obtain coverage under the ADA," and directed the EEOC to revise that portion of its regulations which defines "substantially limits" as "significantly restricted" to be consistent with the ADAAA.1023 Thus, under the ADA as amended [a]
From page 217...
... 217 mental impairment whether or not the impairment limits or is perceived to limit a major life activity.1024 The regulations further provide that an employer must show that an impairment is objectively transitory and minor to establish a defense to a claim of disability discrimination under this test.1025 Bodily pain qualifies as an impairment,1026 a condition that Norfolk Southern's evidence did not dispute.1027 Furthermore, Gaus presented the order preventing him from returning to work as evidence of an adverse action resulting from his impairment.1028 The court held that a reasonable jury could find that Gaus could have been disabled under the "regarded as" test of the ADA as amended.1029 Accordingly, the court granted Norfolk Southern's motion for a summary judgment for the events prior to January 1, 2009, but denied the motion for the events after January 1, 2009.
From page 218...
... 218 would deny disabled individuals equal access to public transit. A federal district court in Pennsylvania held that the installation of the elevators was required to minimize the distance that wheelchair users had to travel compared to members of the general public.1031 The court held that technical feasibility rather than economic feasibility determined whether a facility is being made accessible to disabled patrons.1032 The court held that the alleged need for the city's permission to install an elevator did not preclude a finding of feasibility.1033 On appeal, the Third Circuit affirmed the district court's decision that elevators were required.1034 2.
From page 219...
... 219 were feasible, the district court granted the plaintiffs' motion for a summary judgment and ordered the Port Authority to make certain alterations.1039 On appeal, the issue was whether it would be feasible for the Port Authority to make the station accessible to the handicapped. The Port Authority argued that the accessibility alterations necessitated the acquisition of property not owned by the Port Authority; that the alterations were "technically infeasible;" and that the Port Authority possibly would be unable to make the alterations conform to the fire-safety code.1040 The court, however, did not know whether Jersey City, the current owner of the land needed for the accessibility modifications, would cooperate by providing the property to the Port Authority.1041 In reversing and remanding the case, the appellate court held that neither side was entitled to a summary judgment.1042 Articles F
From page 220...
... 220 rights debate around a new form of universality that could meaningfully advance the disability rights movement.1044 The article discusses a 2008 case, Middleton v. CSX Transportation, Inc.,1045 in which the plaintiff Middleton alleged that CSX "refused to hire him as a freight conductor because he was morbidly obese."1046 Because the case arose prior to the ADA Amendments, the plaintiff had to produce evidence of a "physiological basis for his weight" to prove that he had an actual or perceived impairment under the ADA.1047 The article observes that the ADA "medicaliz[ed]
From page 221...
... 221 and equal opportunity in the disability community."1050 According to the AAPD, "affordable and reliable transportation allows people with disabilities access to important opportunities in education, employment, health care, housing, and community life."1051 With respect to railroad transportation, the article notes that the ADA requires "all new rail stations and facilities" be accessible and key stations of "previously existing rail systems … be made accessible."1052 1050 American Association of People with Disabilities, Equity in Transportation for People with Disabilities, available at: http://www.aapd.com/resources/publications/transportation-disabilities.pdf (last accessed March 31, 2015)
From page 223...
... 223 Sections B through D discuss the Amtrak Act and the Passenger Rail Investment and Improvement Act of 2008 (PRIAA) , as well as the 1997 repeal of Amtrak's exclusive franchise.
From page 224...
... 224 C Repeal of Amtrak's Exclusive Franchise in 1997 A 1998 FRA report on Privatization of Intercity Rail Passenger Service in the United States in a brief history of Amtrak discusses how the Rail Passenger Service Act (RPSA)
From page 225...
... 225 PRIIA tasked Amtrak and other stakeholders with improving Amtrak's service, operations, and facilities in respect to its long-distance routes and the Northeast Corridor (NEC) , state-sponsored corridors, and the development of high-speed rail corridors.1067 PRIIA authorized "grants to Amtrak to cover operating costs, capital investments, including in part, efforts to bring the NEC to a state-of-good-repair, and repayment of Amtrak's long-term debt and capital leases…."1068 Besides implementing a modern financial accounting and reporting system, Amtrak was required to have a 5-year financial plan that addressed at least sixteen categories of information.
From page 226...
... 226 Inspector General (Amtrak OIG Report) , in July 2013 the District of Columbia Circuit "ruled that the performance metrics and standards developed under PRIIA were not enforceable."1070 In June 2014 the Supreme Court granted certiorari.1071 As discussed in the next subpart of the Report, on March 9, 2015, the Supreme Court reversed and remanded the case to the Court of Appeals.
From page 227...
... 227 PRIIA authorized three new federal intercity rail capital assistance programs: one for the Intercity Passenger Rail Service Corridor Capital Assistance Program, one for High-Speed Rail Corridor Development, and one for congestion relief.1075 PRIIA also established opportunities for private sector interests.1076 Among other features of PRIIA, Amtrak was directed to study ADA "accessibility needs at the stations it serves and to identify improvements required to bring those stations into compliance with ADA requirements, including a detailed plan, schedule and recommendations for funding the necessary improvements."1077 Finally, the aforementioned Amtrak OIG Report stated, inter alia, that Amtrak had successfully restructured Amtrak's debt on 13 capital leases.1078 Cases E Private Corporation or Public Entity?
From page 228...
... 228 1. Decision by the District of Columbia Circuit In Association of American Railroads v.
From page 229...
... 229 parties in resolving their disputes through binding arbitration.'"1085 Furthermore, "‘[t] o the extent practicable,' Amtrak and its host rail carriers must incorporate the metrics and standards into their Operating Agreements."1086 Because the arbitration clause did not prohibit a private actor from being appointed as arbitrator, the court held that § 207 would permit "metrics and standards to go into effect that had not been assented to by a single representative of the government."1087 In reversing the district court's grant of a summary judgment for the DOT, the appeals court held that the statute was an unconstitutional delegation of regulatory power to a private entity.1088 2.
From page 230...
... 230 supervised and substantially funded by the political branches. … Amtrak was created by the Government, is controlled by the Government, and operates for the Government's benefit.
From page 231...
... 231 "whether this agreement was an affirmative covenant running with the land or merely a contract."1097 Section 24301(g) provides that "‘[a]
From page 232...
... 232 requirement was satisfied because the public utility rule would only impose a cost on Amtrak without "[altering] the course of the trains [or subjecting]
From page 233...
... 233 preempted because the claim related to service.1110 However, because the Americans with Disabilities Act neither has an express preemption provision that may be applied to railcar design nor has the Act occupied the field of railcar safety, the court held that the negligent design claim was not preempted.1111 H Express and Implied Preemption of Condemnation of Amtrak Property In Amtrak v.
From page 234...
... 234 However, the court granted McDonald's motion for summary judgment on procedural grounds.1116 First, because the Eleventh Amendment entitled the defendant to sovereign immunity, the court ruled that it lacked subject matter jurisdiction over claims regarding the six parcels already condemned.1117 Moreover, because Amtrak was seeking retroactive relief for an alleged violation of federal law that was not ongoing, the rule in Ex parte Young did not apply.1118 Finally, the court held that either or both of two applicable statutes of limitation barred Amtrak's claim on the last parcel that the Commissioner was in the process of condemning.1119 Articles I Amtrak Exemption from Claims under the False Claims Act An article in Recent False Claims Act & Qui Tam Decisions discusses the applicability of the False Claims Act (FCA)
From page 235...
... 235 a qui tam suit against Bombardier Corporation that had contracted with Amtrak to provide Amtrak's rail cars with new toilet systems.1124 Totten alleged that Bombardier knowingly delivered defective cars and later submitted "invoices to Amtrak for payment from an account that included federal funds."1125 However, the district court granted Amtrak a summary judgment because Bombardier never presented a false claim to the government.1126 On appeal, the District of Columbia Circuit affirmed the district court's decision.1127 "[T] he FCA contains a ‘presentment requirement,' requiring claims to be ‘presented to an officer or employee of the Government before liability can attach."1128 However, the Amtrak Act provides that Amtrak is "‘not a department, agency, or instrumentality of the United States Government'"1129 and thus bars FCA suits against Amtrak.1130 Thus, the appellate court's decision effectively exempts Amtrak from FCA actions in spite of Amtrak's federal ties because Amtrak does not qualify as "the Government."1131 1123 380 F.3d 488 (D.C.
From page 236...
... 236 J Amtrak Tax Exemption A law review article discusses the Amtrak tax exemption.1132 The article analyzes a dispute over public utility costs that gave rise to a series of lawsuits by the Pennsylvania Public Utility Commission (PUC)
From page 237...
... 237 article discusses the government's recent allocation of significant resources to HSR projects1138 and the governmental, real property, environmental, and policy issues that accompany such projects.1139 Because of Amtrak's ability to use existing right of ways or privately owned freight tracks for future HSR projects, the article contends that Amtrak is uniquely situated.1140 The article states that because other operators would be at the mercy of the private freight companies Amtrak has "distinct cost advantages" for HSR projects.1141 1138 Id.
From page 239...
... 239 the Report points out that since 1978 the "FRA has also been responsible for administering the Amtrak Buy America provision applicable to procurements made by Amtrak with funds from its capital grant."1147 The Report, first, discusses in some detail the FRA HSIPR Buy America provision, including coverage and applicability, exceptions and waivers, and certification and enforcement.1148 The Report observes that [t] he FRA Buy America provision does not include any express requirements for enforcement by FRA grant recipients.
From page 240...
... 240 Second, the Report discusses the Amtrak Buy America provision, noting that since 1978 "Amtrak has been subject to a statutory domestic preference … which applies to Amtrak's direct purchases using its federal funds"1154 and provides an analysis similar to the analysis of the FRA HSIPR Buy America provision (e.g., coverage and applicability, exceptions and waivers, and certification and enforcement) .1155 Case studies are included also.
From page 241...
... 241 Although, as noted, the FRA to date has not promulgated Buy America regulations the FTA's "regulations and administrative history are so voluminous that research is often required to determine how to apply the various waivers to a given procurement."1161 1161 Id.
From page 243...
... 243 transportation intermediary carriers may create by contract their own terms of liability with an initial carrier, thus allowing them to opt out of the aforementioned statutory provisions. Congress enacted the Carmack Amendment in 1906 to amend the Interstate Commerce Act.1162 The Amendment creates a uniform system for interstate shippers to recover for actual loss or injury to property caused by carriers.1163 The Amendment contains separate but similar provisions that limit the liability of railroads, motor carriers, water carriers, brokers, and freight forwarders.1164 The provisions insulate carriers from liability from claims that could result in an award of damages in excess of the value of the property that was lost or damaged.1165 Although the Carmack Amendment limits the liability of a carrier to the value of the damaged goods, the Amendment imposes strict liability on common carriers for goods that are lost, damaged, or not delivered on time, thus preempting state and common law claims in these instances.1166 Section 11706 of the Carmack Amendment imposes liability on railroad carriers for "the actual loss or injury to property caused by (1)
From page 244...
... 244 carrier that issues a bill of lading or that delivers the goods may recover the amount owed to the owners of the goods from the rail carrier over whose rail where the destruction or damage to the property occurred.1168 The Amendment also provides a cause of action against "the originating rail carrier … the delivering rail carrier … and the carrier alleged to have caused the loss or damage."1169 But the Amendment allows railroads to limit their liability, first, by allowing trains carrying passengers to limit their liability under their passenger rates for loss of or damage to baggage1170 and, second, by allowing railroads to limit liability for transported property to the value established by written agreement between a shipper and a carrier.1171 The details on railroad liability under the Carmack Amendment are set forth in parts 1005 and 1035 of Title 49 of the Code of Federal Regulations.1172 Part 1005 applies to the processing of claims and specifically includes all railroads that are subject to the Interstate Commerce Act.1173 Part 1035 describes the requirements for bills of lading for common carriers.1174 1168 49 U.S.C.
From page 245...
... 245 Cases C Applicability of the Carmack Amendment 1.
From page 246...
... 246 2. Intrastate Shipment that was Part of an Interstate Shipment In Chartis Mexico, S.A.
From page 247...
... 247 as it found in the March 13, 2014 Opinion & Order, no reasonable jury could find that the Rules Publication was incorporated into the BOLs. Like other contracts, a bill of lading is generally held to incorporate the terms of an extrinsic document where there is a "specific reference" to that document and "unmistakable language" in the bill of lading that the terms in that document have been incorporated.1186 The court further found that "no reasonable jury could conclude that ‘Price is subject to 9012' is a sufficiently specific reference to the Rules Publication because it does not cite to the Rules Publication which is merely an internal KCSR document accessible only on its website."1187 3.
From page 248...
... 248 California, but an earthquake that occurred while the cargo was in transit caused a railcar carrying Pacer's cargo to derail.1192 During discovery Pacer learned that the damage to the cargo did not occur when the rail car derailed but when Amtrak and the other defendants attempted to re-rail the rail car.1193 Claims under the Carmack Amendment may be "brought against the originating rail carrier ‘in the judicial district in which the point of origin is located.'"1194 The court held that the claims against the non-railroad defendant were properly brought in that district in spite of the fact that the usual venue would have been California; it was proper to try all the claims in one action because they arose out of the same nucleus of facts.1195 Statutes and Regulations D Applicability of the Carriage of Goods by Sea Act and the Harter Act When shipments originate overseas under a single through bill of lading, or the shipper and carrier contract to limit the liability of intermediary carriers and freight forwarders, the Carmack Amendment may not apply.
From page 249...
... 249 Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (also known as the Hague Rules)
From page 250...
... 250 Cases E Carmack Amendment Inapplicable When the Parties Contract Otherwise When parties engaged in maritime commerce enter into a contract and select COGSA to govern any dispute, the Carmack Amendment will not apply to the rail segment of an international shipment.1203 In Kawasaki Kisen Kaisha Ltd.
From page 251...
... 251 that Kawasaki and Regal-Beloit would litigate any dispute in Tokyo and that further provided that COGSA would apply to the entire journey prevented the Carmack Amendment's application to the rail transportation segment of the international shipment.1209 Furthermore, allowing a shipment to be governed both by the Carmack Amendment and by COGSA would undermine COGSA. The Carmack Amendment only applies to property for which a receiving rail carrier has issued a bill of lading.1210 When an international shipment is governed by a through bill of lading, there is no receiving rail carrier because the initial carrier did not receive the cargo for transport by domestic rail.1211 Furthermore, applying the Carmack Amendment to international shipments governed by a through bill of lading would create jurisdictional issues: the Carmack Amendment provides for venue within the United States; however, a through bill of lading may call for jurisdiction of claims outside the United States.1212 Before the Supreme Court's decision, the Ninth Circuit had ruled that a forum selection clause did not apply because the Carmack Amendment governs an international shipment's inland segment under a through bill of lading.1213 The Second Circuit had taken a similar position, whereas the Fourth, Sixth, Seventh, and Eleventh Circuits had decided that the 1209 Id.
From page 252...
... 252 Carmack Amendment did not apply in this situation.1214 The Supreme Court's decision therefore resolved a split among the circuits.
From page 253...
... 253 Carmack Amendment.1221 Second, the ocean carrier, not Norfolk Southern, was the "receiving carrier" of the products; thus, Norfolk Southern was not liable under Carmack.1222 Because of the Supreme Court's decision in Kawasaki, supra, part V.H.1, the Georgia court held that the application of the Carmack Amendment has been "significantly limited" in that the Carmack Amendment does not apply when "‘property is received at an overseas location under a through bill [of lading] that covers the transport into an inland location in the United States.'"1223 The Carmack Amendment only applies to the "initial receiver," which was the ocean carrier, and the freight forwarder and receiving rail carrier could contract out of the Carmack Amendment in subsequent agreements.1224 Because the freight forwarder contracted with Norfolk Southern regarding its own liability, the Carmack Amendment did not apply.1225 G
From page 254...
... 254 Federal Insurance Company (FIC) for the destruction of property that Union Pacific was transporting when one of its trains derailed.
From page 255...
... 255 1. Need for a Uniform Law A law review article published prior to Kawasaki, supra, part V.H.1, discusses the legislative history of the Carmack Amendment and some of the conflicting decisions on the Carmack Amendment's applicability to the inland segment of a shipment by intermodal transportation that originates overseas.1229 As discussed in the article, the Ninth Circuit's view was that "the language of [the Amendment]
From page 256...
... 256 imports and exports.1234 The article argues that an exemption under the Carmack Amendment of the inland segment of an overseas shipment eliminates the Amendment's application to a substantial amount of trade, because "[r] oughly 60% of all U.S.
From page 257...
... 257 and the Carmack Amendment contemplate specialized service contracts, both the ocean carrier and rail carrier would be able to enter into contracts with one another that subject the rail carrier to COGSA liability rather than Carmack Amendment liability. The carriers would be able to choose to avoid Carmack Amendment liability on the through bill of lading under the principle of the freedom of contract, but both statutes would remain in effect as default regimes.1240 The article discusses whether the Supreme Court's decision also will apply to exports and notes that some lower court decisions after Kawasaki have stated that the Carmack Amendment applies to export shipments on through bills of lading.1241 4.
From page 258...
... 258 between the carrier and the shipper.1245 The Court, however, did not address the issue of whether COGSA or the Carmack Amendment governed the liability of a carrier for the inland transportation segment of an international shipment, thus creating an opportunity for the courts of appeal to choose which act would govern.1246 Four federal circuit courts of appeals held that the Carmack Amendment did not govern the domestic portion of an international shipment when a bill of lading extended COGSA to cover the domestic portion of a shipment,1247 whereas two federal circuits ruled that the Amendment covered the inland portion of an international shipment even when a bill of lading attempted to extend COGSA's application.1248 The article argues that the Carmack Amendment should not apply "for the following reasons: Carmack's own language must be given effect; Supreme Court precedent requires it; judicial economy and economic certainty demand a bright-line rule; and the Kirby decision."1249 The article argues that the Carmack Amendment does not govern the inland portion of an international shipment because a separate bill of lading is not issued for the inland portion.1250 However, the Supreme Court held in Reider v. Thompson1251 that the Carmack Amendment did 1245 Id.
From page 259...
... 259 apply to the inland portion of an international shipment because a domestic bill of lading was issued.1252 The article contends that applying the Carmack Amendment to inland segments of international shipments subject to a through bill of lading would "increase litigation and create uncertainty through conflict between contractual terms and domestic laws. It would also require judicial determination as to the exact point in time when the ocean carrier and the inland carrier exchange the risk of loss for the goods."1253 The article notes that in Kirby the Supreme Court held that "Carmack should not apply to inland segments of multimodal shipments subject to a through bill of lading, with COGSA applying to the other segments of the shipment, because this would destroy uniformity in maritime law."1254 The article concludes that the courts should respect the parties' intent to the extent that they contract to extend COGSA to inland transportation.1255 1252 Bell, supra note 1242, at 68-69.
From page 261...
... 261 shall not be required to be reconstructed by the corporation to accommodate changes in land conditions not caused by the corporation….1256 C Applicable Federal Law Requires Railroads to Facilitate Water Flow from the Roadbed Federal law requires that "[e]
From page 262...
... 262 restricted the flow of the Sandy Run Creek and caused a backup of upstream waters" that resulted in flooding where the hotel was located.1260 A Pennsylvania court held that the Federal Railroad Safety Act of 1970 (FRSA) preempted a state claim for negligence because the Secretary of Transportation had promulgated a regulation, discussed in part C above, that covered drainage issues.
From page 263...
... 263 negligence, because common law negligence does not address an essentially local safety hazard.1266 Thus, the plaintiffs' claims failed to meet the required elements to avoid preemption.1267 Furthermore, the issue of water flow was an area completely occupied by federal law and to require railroads to comply with the common law of fifty states would burden interstate commerce.1268 Therefore, SEPTA was not liable for storm damage to the hotel.
From page 264...
... 264 Furthermore, the court ruled that § 213.33 of the Track Safety Standards was not "dispositive of preemption as a regulation which covers the subject matter of the governing state law…."1272 The court stated that § 213.33 "simply does not address, much less cover, the subject matter of Pennsylvania's common law riparian rights."1273 E Whether the Interstate Commerce Commission Termination Act of 1995 Preempts State Law Claims for Water Damage In Village of Big Lake v.
From page 265...
... 265 [STB] has exclusive jurisdiction over the ‘construction' of railroad tracks."1278 The court's reasoning was that the state statute and the local ordinance requiring a study were preempted per se by the ICCTA: [T]
From page 266...
... 266 F Change in Topography Resulting in Changes in Drainage does not Modify a Railroad's Duty to Provide Proper Drainage In City of Atlanta v.
From page 267...
... 267 properly-installed drainage ditch and pipe."1286 The homeowners' separate nuisance claim was held to be barred by the statute of limitations.1287 Article G Surface Water Rules in Arkansas A law review article discusses the issue of diffused surface water in Arkansas and analyzes several court cases, including some against railroads.
From page 268...
... 268 neighboring property.1292 The court held that the railroad was liable for water damage because it constructed its roadbed without sufficient drains that caused unnecessary damage to the plaintiff's land, thereby violating the modified common enemy rule.1293 Because the railroad could have protected its property from water damage without damaging the plaintiff's property, the railroad was negligent when it acted to protect itself from diffused surface water.1294 The article argues that Arkansas should adopt a "reasonable use rule." Under the reasonable use rule "liability is determined by the reasonableness of the property owner's actions [that] altered the surface water flow."1295 Recently, many states have adopted the reasonable use rule because the common enemy rule historically was not intended to apply to surface water.1296 Under the reasonable use rule a property owner may be liable for interfering with the flow of water in a watercourse or for negligence in controlling, diverting, or otherwise handling diffused surface water.1297 1292 Id.
From page 270...
... 270 If the work of any grade crossing elimination project shall cause actual damage to property not acquired as provided in this article, the state shall be liable therefor, but this provision shall not be deemed to create any liability not already existing by statute. … If the amount of any such claim is not agreed upon, such claim may, pursuant to the provisions of the eminent domain procedure law, be presented to the court of claims which shall hear such claim and determine if the amount of such claim or any part thereof is a legal claim against the state and, if it so determines, to make an award and enter judgment thereon against the state….1299 In Pennsylvania, "[a]
From page 271...
... 271 compensation for later improvements to the highway.1303 The current edition of Nichols on Eminent Domain confirms the point. The treatise states that "when public highways are established, the government generally acquires a fee or easement interest that also includes the right to initially establish the grade of the roadway and to alter it at any time, and from time to time, as public necessity and convenience may require."1304 Although railroads are private companies, they are considered to be public-service corporations.
From page 272...
... 272 D Contracts between States or their Local Governments and Railroads for Damages Caused by a Change of Grade Rigney v.
From page 273...
... 273 v. Fox:1314 the municipality must have intended to secure a public benefit for owners of land affected by a change of grade, and the municipality must have had an obligation to the landowners.1315 In Rigney, the property owner's action met both requirements.
From page 274...
... 274 courts were unlikely to grant property owners injunctive relief to prevent a change of grade.1320 The author concludes by discussing the issues of governmental immunity to actions for just compensation and whether injunctive relief is available under certain limited circumstances.
From page 275...
... 275 On the subject of damages for loss of access, the Stokes article may be compared with Nichols on Eminent Domain. Nichols states that a landowner may be entitled to damages when government construction results in a loss of access to property.1327 Specifically, when there is a change of grade and a loss of access to abutting property, a property owner "is entitled to compensation under the ‘damage' provision of the Constitution." 1328 However, when access to land is only partially obstructed, compensation is not warranted.1329 Finally "[a]
From page 277...
... 277 Legacy for Users (SAFETEA-LU) and $100 million by the United States Department of Transportation (DOT)
From page 278...
... 278 C TIGER Program under the American Recovery and Reinvestment Act The United States Department of Transportation (DOT)
From page 279...
... 279 The area already has attained a reduction in congestion because of the completion of some projects.1347 Reportedly, there has been a twenty-eight percent reduction in freight delays and a thirty-three percent reduction in passenger delays.1348 The report also discusses CREATE's economic and environmental benefits and the anticipated increase in freight traffic in the coming years.1349 E CREATE's Future as Dependent on Additional Funding A June 2013 article in the Chicago Tribune discusses the possibility that funding for the CREATE program will diminish.1350 As of the date of the article, the CREATE program still needed $2 billion for the completion of its projects.1351 Partners in the program, including Amtrak, have testified before a House Subcommittee on Transportation on the CREATE projects that already have been completed successfully.1352 CREATE has yet to secure the funding needed to finish its projects.1353 1347 Id.
From page 281...
... 281 Furthermore, the law provides that "[c] ommitments which deprive a carrier of its ability to respond to reasonable requests for common carrier service are not reasonable."1355 C
From page 282...
... 282 As stated by the DOT, the transportation of hazardous materials is essential to our daily lives and therefore unavoidable.1360 Furthermore, railroads transport a majority of the shipments of hazardous materials that are toxic to inhale. Transportation of hazardous materials by highway would require a substantial investment to equal the capacity currently available by rail.
From page 283...
... 283 identified.1364 The PMHSA has trained and equipped first responders in local communities to assist them in handling any rail incidents involving hazardous materials.1365 Cases D Exceptions to the Common Carrier Obligation are not to be Implied In 1967, in Am.
From page 284...
... 284 services to all parties the carrier may not discriminate against and refuse service to motor carriers or other competitors.1371 E Statutory Common Carrier Obligation to Transport Hazardous Materials In Riffin v.
From page 285...
... 285 interpretation of the statutory requirement in 49 U.S.C. § 11101 was permissible.1378 The common carrier obligation requires a rail carrier to provide transportation or service upon reasonable request and when an agency has promulgated comprehensive safety regulations for a particular type of cargo (helping to ensure the safety of shipments of that category of freight)
From page 286...
... 286 for the carrier."1384 The common carrier obligation mandates that railroads transport hazardous materials, toxic inhalation hazard (TIH) materials, nuclear materials, and other non-nuclear hazardous materials as long as there is a comprehensive regulatory framework that governs the transportation of the materials, such as 49 U.S.C.
From page 288...
... 288 Statutes B Regulatory Reform, Deregulation and Mergers and Acquisitions of Railroads 1.
From page 289...
... 289 Articles 2. The Railroad Revitalization and Regulatory Reform Act of 1976 A study of the effect of the Railroad Revitalization and Regulatory Reform Act of 1976 (4R Act)
From page 290...
... 290 "beneficial effects on shippers and railroads" alike.1403 The article states that railroads had to "reduce their costs to improve financial performance" but that deregulation allowed railroads to negotiate contract rates.1404 The author concludes that "rail deregulation accomplished its primary purpose of putting the U.S. rail industry on a more secure financial footing."1405 Statutes 4.
From page 291...
... 291 (1) the effect of the proposed transaction on the adequacy of transportation to the public; (2)
From page 292...
... 292 and their qualifications.1414 Under § 703 the STB has the status of a governmental agency.1415 The STB has authority to (1) inquire into and report on the management of the business of carriers providing transportation and services subject to subtitle IV; (2)
From page 293...
... 293 congestion in Chicago but needed the STB's approval as required under 49 U.S.C. § 11323.1420 Subsection (d)
From page 294...
... 294 mergers."1427 The court further held that because the STB's interpretation of subsection (d) was reasonable the court had to give a high degree of deference to the agency's decision to impose environmental conditions.1428 7.
From page 295...
... 295 Rate Guidelines (Guidelines) as a stand-alone test to determine whether the railroad's rate was reasonable.1435 Under the Guidelines "a carrier's rates may not exceed the rates a hypothetical ‘stand-alone railroad' would have to charge in order to recover the costs of building a rail system to carry the complaining shippers' traffic and earn a reasonable return."1436 The court held that the STB's use of the Guidelines was reasonable.1437 Articles 8.
From page 296...
... 296 In 1920, Congress enacted the Esch-Cummins Act that gave the ICC the power to regulate entry and exit from markets and to regulate mergers.1442 However, after motor vehicles became a strong competitor to railroads, the ICC lost some of its independence and railroads became less profitable.1443 Deregulation was seen as a means to make the railroads more profitable and competitive by encouraging a free market model.1444 In 1995, Congress enacted the ICCTA that dissolved the ICC and transferred its powers to the STB.1445 The article notes the impact of the deregulation of the financial, electric power, and airline industries, stating that the deregulation of the industries led, respectively, to "a trillion-dollar bailout of the savings and loan industry;" "Enron wreak[ing] havoc on consumers and investors;" and the airlines lagging "in every category, including fleet age, service quality and international reputation" compared to airlines in other countries.1446 The article argues that the deregulation of the railroad industry could have similar adverse effects on the economy and the public.1447 9.
From page 297...
... 297 address them.1448 Bottlenecks are "portions of the [rail] network where only one railroad can provide services."1449 When a railroad has exclusive control over a destination there is a risk of anticompetitive behavior.
From page 298...
... 298 bottleneck.1455 The article states that the STB is likely to suggest a through route rather than reciprocal switching1456 as a remedy to bottlenecking.1457 If a shipper petitions for a reasonable rate, the "railroad firm must show that the rate it charges ‘results in a revenue-variable cost percentage for such transportation that is less than 180 percent.'" 1458 Finally, the article offers four proposals to alleviate bottlenecking.1459 C Antitrust Exemptions for Railroads Statutes 1.
From page 299...
... 299 corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.1461 Under section 2: Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.1462 2. Railroads' Exemption from the Antitrust Laws Federal law, however, provides that [a]
From page 300...
... 300 As the Second Circuit has stated, [b] ecause … concerted action in the area of rate-making clearly falls within the proscriptions of the federal anti-trust laws, Congress in authorizing such associations exempted them from the anti-trust laws, but in so doing it provided that any agreement establishing the procedure for the determination of joint rates must afford "each party the free and unrestrained right to take independent action either before or after any determination arrived at through such procedure."1465 4.
From page 301...
... 301 Cases 6. Implied Immunity from Antitrust Litigation In In re Wheat Rail Freight Rate Antitrust Litigation1470 the plaintiff alleged that several railroads violated § 1 of the Sherman Act by conspiring to fix freight rail rates for wheat and wheat products.
From page 302...
... 302 [t] he regulation of the railroad industry by the ICC prevents the antitrust laws from having their intended effect of increasing competition and benefitting consumers.
From page 303...
... 303 laws shields anticompetitive agreements that are contrary to the public interest.1480 The article notes that there are six antitrust exemptions for commercial transportation, including exemptions for railroads under the ICCTA.1481 The article argues that antitrust exemptions for transportation industries should be repealed and that any joint ventures or legitimate transactions that continue should be subject to periodic review.1482 The author's thesis is that transactions should be subject to review by the regulating agency and the Department of Justice after the parties request a "Robust Business Review Clearance."1483 What is needed is access to a robust form of a time-limited, business review clearance explicitly focused on avoiding unnecessarily anticompetitive agreements or mergers while providing better protection for legitimate, reasonable ventures.
From page 304...
... 304 The article recommends that when a proposed transaction does not pose a risk to competition the parties should be immune from antitrust liability for a five-year renewable period.1486 9. Proposal that the Approval of Mergers be Transferred from the STB to the Courts An article in the Transportation Law Journal examines the public interest standard used by the STB in determining whether to approve a railroad merger; discusses how the STB has approved almost every proposed merger; and questions whether the courts rather than the STB should have authority to approve mergers.1487 The article focuses on the merger of the Union Pacific and Southern Pacific railroads that was approved, even though the merger reduced the number of Class I railroads west of the Mississippi to two and was alleged by "shippers, other railroad carriers, state governments, and the U.S.
From page 305...
... 305 rejected the contention that the merger would create a duopoly to control prices.1490 The article argues, however, that the STB approves mergers because of a political agenda favoring deregulation.1491 The writer contends that because courts are "politically neutral" the courts are "best suited" to review proposed mergers.1492 According to the article, the concern is that the continued approval of applications for mergers of Class I railroads will lead to only one or two transcontinental railroad systems, thus increasing the risk of anticompetitive pricing.1493 10. Proposed Legislation that would Affect the Antitrust Exemptions of Railroads An article in the Administrative Law Review examines the economic consequences of an antitrust act applicable to railroads.
From page 306...
... 306 behavior.1495 Although the proposed legislation would not have eliminated antitrust exemptions for railroads, it would have increased the scrutiny of "paper barriers" and "refusals to deal."1496 A paper barrier "is a contractual clause limiting the ability or incentive of the purchaser or lessee of a rail line to interchange traffic with railroads other than the line's seller or lessor."1497 A "refusal to deal" is when a shipper is served by a railroad that refuses either to (a) allow the trains of a competing railroad to serve the shipper over the monopoly railroad's tracks[]
From page 307...
... 307 carrier if the Board finds that use to be practicable and in the public interest without substantially impairing the ability of the rail carrier owning the facilities or entitled to use the facilities to handle its own business.1500 The law also provides that "[t] he rail carriers are responsible for establishing the conditions and compensation for use of the facilities.
From page 308...
... 308 the STB asked the parties to provide additional information.1505 The STB requested information on: (1) the impact on rates and service for shippers that would qualify under the competitive switching proposal; (2)
From page 309...
... 309 government shutdown, the STB postponed the hearing on Ex Parte 711 that had been scheduled for October 22, 2013, without setting a new date for a hearing.1511 1511 Id.
From page 311...
... 311 state law under the Contracts Clause on the basis that the statute nullifies a provision of a contract to which a railroad is a party. Third, under the Fourteenth Amendment to the Constitution "[n]
From page 312...
... 312 Cases 1. State Statute Requiring a Full Crew on Trains does not Violate the Due Process Clause or the Equal Protection Clause As described by the Supreme Court in Brotherhood of Locomotive Firemen & Enginemen v.
From page 313...
... 313 Likewise, in Chicago & N.W.
From page 314...
... 314 court held that the additional costs were justified because requiring firemen on trains increased rail safety.1527 The railroads also alleged a violation of the Equal Protection Clause because the full crew statutes did not apply to "railroads that operate less than 10 miles of route outside of yard limits."1528 However, the court held that the full crew statutes were reasonably related to safety and thus was constitutionally permissible.1529 However, it has been ruled that some of the provisions of the aforesaid Wisconsin statutes are preempted by federal law. In 1999 in Burlington N
From page 315...
... 315 crew of two men on all locomotives.1533 The special court established to adjudicate issues arising out of the 3R Act observed that the Act as amended by the § 711 of the Northeast Rail Service Act provided that "[n] o state may adopt or continue in force any law … requiring … [regional railroads]
From page 316...
... 316 In Berens, the railroad argued that the South Dakota laws were an unconstitutional denial of equal protection under the Fourteenth Amendment because the statutes were not imposed on "motor carriers of freight and passengers travelling over public highways."1538 However, the court held that when "the legislature exercises its police powers, and a classification is made that is reasonable and not arbitrary, there is no denial of equal protection of the law."1539 Although "motor carriers and railroads are engaged in the same general business[] … the methods and means by which they perform their functions are far different and the legislature is acting within its prerogative to separate them into classes for regulation."1540 The court held that because the legislature was within its right to change the burden of proof the statute's presumption of liability was not a denial of equal protection.1541 3.
From page 317...
... 317 Circuit held that the requirement that railroads have a manned caboose was not a violation of the Commerce and Contract Clauses of the United States Constitution. It should be noted that in 1989, after Burlington Northern challenged a Minnesota statute that required a manned caboose, the Eighth Circuit held that the Federal Railroad Administration's (FRA)
From page 318...
... 318 D Violation of the Fourth Amendment by a Railroad Security Officer Acting under Color of State Law In George v.
From page 319...
... 319 vehicle.1556 In addition, the court dismissed the plaintiffs' state law claim for malicious prosecution because it was identical to the federal statute.1557 Finally, the court dismissed the plaintiffs' substantive due process claim, as well as the plaintiffs' remaining claims under state law.1558 1556 Id.
From page 321...
... 321 whom the railroad company contracts for the performance of the work or the delivery of the materials, to the amount of the debt contracted for such performance or delivery."1559 C Authority to a Railroad Company Change the Grade of Existing Tracks or to Construct New Tracks Under a New Jersey statute a municipality may enter a contract with any railroad company whose road lies wholly or partially within the municipality or whose route has been located therein as will secure greater safety to persons or property therein, or will facilitate the construction or maintenance of other than grade crossings of streets, highways or other railroads, or will provide for increased or improved station or terminal facilities and transportation service, or will improve the surroundings of or make more convenient the access to a station of the railroad within the municipality.
From page 322...
... 322 particular items as property owners or lessees, for moving, clearing, rearranging or relocating public utilities, buildings and other structures."1562 Cases E Indemnity of a Railroad Company under a Construction Contract for an Injury to an Employee during Construction In Brown v.
From page 323...
... 323 clause in the contract between the county and B&O.1567 The Maryland statute was intended to void indemnity clauses that would permit construction companies to avoid liability for their own actions. The court held that the statute was not intended to apply to licensors or easement grantors such as the B & O who enter into railroad crossing indemnity agreements of this type.
From page 324...
... 324 organization for ‘bodily injury' … arising out of construction … within fifty feet of any railroad property."1571 Campbell argued that its contract with Amtrak to paint the bridge did not come within the meaning of the term construction.1572 Although New York's labor laws defined construction to include painting, a federal district court in New York held that the term construction should be given its normal meaning and that a contract for the painting of a bridge was not a construction contract within the meaning of the insurance policy.1573 G Whether Indemnity Provisions are against Public Policy In S
From page 325...
... 325 California statute voided contractual provisions as against public policy that indemnify a promissee for an injury or death caused by the promisee's negligence.1577 A California appellate court observed that the statute's intent was that a non-negligent party to a construction contract will not be held liable for the other party's negligence.1578 Therefore, because the purpose of the indemnity clause between the Association and Southern Pacific was to shift responsibility for the railroad's negligence to the Association, the indemnity provision was void.1579 H Conflict between a Public Policy against Indemnity Agreements in Construction Contracts and a Public Policy in favor of a Railroad's Ability to Grant Easements In Helm v.
From page 326...
... 326 prevent the indemnification of a promisee for injury and liability caused by the promisee's negligence.1581 The issue for the Fourth Circuit was whether the railroad licensing agreement at issue was a construction agreement within the meaning of the Maryland statute.1582 In an earlier case, Brown v Balt. & Ohio Railroad,1583 the Fourth Circuit had held that the statute was not applicable to licensors and grantors of easements.1584 In that case B&O granted an easement but did not control performance of the construction contract.1585 The Fourth Circuit stated that two public policies were in conflict.
From page 327...
... 327 I Railroad's Liability for Active Interference with a Contractor In U.S.
From page 328...
... 328 able to determine when ABD should commence work but that ABD could not forgo initiating its work and risk a breach of contract.1595 Therefore, the court held that Missouri Pacific actively interfered with ABD's performance and that the no damage clause was unenforceable.1596 J Interpretation of an Indemnity Provision Determined by the Contract's Choice of Law Provision In Wallace v.
From page 329...
... 329 applied.1602 A federal district court in New York, applying District of Columbia law, held that Weeks was not liable for a breach of contract because it denied its obligation to indemnify.1603 However, the court held that Weeks was responsible for any claim brought by an employee because under District of Columbia law a party may be indemnified under a contract regardless of the party's negligence.1604 Article K Indemnity Clauses and Public Policy under Virginia Law A law review article on developments in construction law in Virginia that also covers indemnity clauses in construction contracts discusses W.R.
From page 330...
... 330 [the HRSD] harmless from any claims brought against it as a result of the contractor's performance of the work."1609 After one of the contractor's employees was injured by a train, and the employee brought an action suit against Belt Line, the HRSD "honored its indemnity obligation."1610 The contractor refused the HRSD's later demand that the contractor honor its indemnity obligation.
From page 332...
... 332 way, a state court ruled that the contract would be void if the railroad company were no longer operating.1615 Cases 2. Railroad's Obligation to Maintain and Operate a Railroad while under Lease In Southern Railway Co.
From page 333...
... 333 suitable for its intended use.1622 The city of Cincinnati leased property to the Cincinnati, New Orleans, & Texas Pacific Railway Company (CNO&TP) to operate a rail line.1623 Because the bridges for the existing track were no longer operable, CNO&TP claimed that the city should repair the track to put it in a condition suitable for use as a railroad.1624 However, the court held that the city as the lessor was not obligated under the lease to repair the bridges.1625 Thus, unless otherwise required by the terms of the lease or required by statute, a lessor is not obligated to put property in an operable condition when leasing it to a railroad.1626 4.
From page 334...
... 334 priority over mortgage payments.1629 The mortgagee argued that the railroad first had to meet its obligations under the mortgage before paying other indebtedness. The court held that it has long been established that mortgages upon railroad properties are subject to certain implied conditions.
From page 335...
... 335 C Indemnity Provisions in Railroad Contracts other than Construction Contracts Cases 1.
From page 336...
... 336 each liable for half of the settlement with the employee and that Gunderson was not liable for Union Pacific's part.1641 2. Indemnity Provision not Negated by Party's Passive or Secondary Negligence In Booth-Kelly Lumber Co.
From page 337...
... 337 accident.1646 Southern Pacific argued that it was only passively negligent for failing to warn its brakeman of the presence of the cart.1647 The court held that the indemnity provision assumes that there was some negligence on the part of Southern Pacific; however, because Southern Pacific was only passively negligent while the Booth-Kelly was actively negligent, Southern Pacific was entitled to a full indemnity under the provision.1648 Articles 3. Freight Rail has Limited Liability for Passenger Rail Incidents A law review article discusses the issue of indemnification of freight rail lines when a passenger rail line, including mass transit lines, is granted a right of way on its lines.1649 When a freight railroad and Amtrak enter into an agreement granting Amtrak a right of way on freight lines, the freight railroad is indemnified from liability for incidents arising out of the use of the railroad by Amtrak for its passengers.1650 In National R.R.
From page 338...
... 338 train, resulting in the deaths of and injuries to some passengers.1652 The employees, who recently had used marijuana, were operating the train at a high speed with a broken cab signal.1653 The trial court "determined that ‘public policy will not allow enforcement of indemnification provisions that appear to cover such extreme misconduct because serious and significant disincentives to railroad safety would ensue.'"1654 However, the District of Columbia Circuit reversed the district court without reaching the "public policy … or … substantive issues of contract interpretation…."1655 Rather the appellate court reversed the district court because it "should have compelled arbitration as provided in the Operating Agreement between the parties…."1656 In discussing the above 1990 case, the Marks' article observes, first, that "the potential that future courts may weaken indemnity provisions in rail sharing contracts motivated congressional action to reinforce indemnification agreements;" that "[t] he 1997 Amtrak reauthorization legislation included a $200 million liability cap for all rail passengers;" and that the legislation "reinforced that ‘[a]
From page 339...
... 339 Second, the article argues that the "legislation will help inner-city transit agencies enforce indemnity agreements with owners of rights-of-way" and that that "[a] lthough the liability cap has not been tested, courts have upheld transit agencies[‘]
From page 340...
... 340 Some states have refused to accede to freight rails' demands for no-fault liability indemnification.1664 Both Florida and Massachusetts wanted to use CSX freight lines for passenger rail service, but CSX demanded no-fault indemnification provisions from the states.1665 Some state legislation allows for freight and commuter rail services to enter into contracts that include indemnity provisions but that do not prescribe the limits of indemnification.1666 Both Minnesota and Virginia have statutes on indemnification in freight and passenger rail agreements without specifying the terms.1667 5. Whether it is against the Public Interest to Release or Indemnify a Railroad Company Acting as a Landlord As discussed in a law review article, when a railroad company is a landlord, the company may include an exculpatory provision in a lease that releases the railroad from any liability for damage to the lessee's property or a provision for indemnification of the railroad company.1668 In Griswold v.
From page 341...
... 341 substantial elevator, coal sheds, and lumber yard on the above described premises; and further agrees to protect and save harmless said lessor from all liability for damage by fire, which, in the operation of the lessor's railroad, or from cars or engines lawfully on its tracks, may accidentally or negligently be communicated to any property or structure on said described premises.1670 Notwithstanding a state statute that imposed liability on railroads for fires arising out of railroad operations, the court enforced an indemnity provision in a lease agreement between the railroad and the claimant who lost property in a fire.1671 In Stephens v. Southern Pacific Co.1672 the court also upheld an indemnity provision that was triggered by a fire caused by the railroad.1673 The court held that there was no public policy interest at stake in upholding the indemnity provisions in such a lease.1674 The law review article argues that allowing railroads as lessors to contract for indemnity is economically efficient and, therefore, should not be against public policy.1675 D
From page 342...
... 342 construct an extension to any of its railroad lines [or] construct an additional railroad line … only if the Board issues a certificate authorizing such activity."1677 The STB now is authorized to mandate the construction of switch connections when an owner of a railroad applies to the Board for the connection.1678 The authority of the STB has been confirmed in a number of cases.1679 Cases 2.
From page 343...
... 343 The Seventh Circuit held that DM&E, after it sold the property to Wisconsin & Southern, did not retain any right to use the track when the easement to serve Freedom Plastics no longer applied. Furthermore, DM&E did not retain a property interest in the rails.1684 The court held that the rails on a railroad's right of way are fixtures, … and fixtures are part of the real property to which they are attached.
From page 344...
... 344 easement was not guaranteed to be the same as under a lease and that Union Pacific would lose property rights if its property were condemned.1689 The court further held that the condemnation amounted to regulation that interfered with railroad transportation and, thus, was preempted by the ICCTA.1690 The CTA could enter into a new lease, but it could not obtain a favorable arrangement for itself through condemnation.1691 4. STB's Review of Proposed Switching and Joint Use Agreements Limited by a Showing of Public Interest or Encouragement of Competition In Central States Enterprises, Inc.
From page 345...
... 345 mergers of railroads, as well as agreements concerning trackage rights or joint use.1696 In reviewing proposed agreements the STB must consider the public interest and the effect on competition among railroads.1697 The Seventh Circuit upheld the Commission's finding that there had not been a showing of a compelling public need for joint terminal service; held that the Commission acted within its discretion in assessing what was in the public interest, and upheld the Commission's conclusion that the switching agreement was sought merely as a matter of convenience.1698 5. Construction of a Spur Track over a Pipeline on an Easement In Travis County v.
From page 346...
... 346 build a spur track across the easement.1702 Although the district court held the county had the right to build a spur track on the land, the Fifth Circuit reversed and remanded the case.1703 The Fifth Circuit held that under Texas law the rules on the interpretation of contracts also apply to easements.1704 However, because the easement was silent on which party should pay to lower the pipeline if a spur track were built across it, the court held that the Texas Health and Safety Code governed.1705 The court further held that Balcones was a "constructor" within the meaning of the statute and that [t] he County or its grantee may not proceed to build the railroad spur until "the constructor pays the reasonable, necessary, and documented cost of the additional fortifications, barriers, conduits, or other changes or improvements necessary to protect the public or pipeline facility from that risk before proceeding with the construction."1706 Articles 6.
From page 347...
... 347 after the sale or to employ displaced workers.1708 According to the article, when there were existing contractual protections for employees, deregulation has resulted in the voiding of such contractual arrangements for employees.1709 7. Shifting Bargaining Power between Passenger Rail Lines and Freight Rail Lines through STB Regulation As an article in the Transportation Law Journal explains, when it is in the public interest the STB may require the use of track facilities of one carrier for another carrier.1710 Although the parties are to negotiate the terms, the Board may establish the necessary conditions when the parties are unable to do so.1711 Commuter agencies may take advantage of the Board's power to establish conditions when negotiating for the use of freight lines.1712 As for the property that the STB may require to be used, [t]
From page 348...
... 348 Furthermore, "a terminal facility is ‘any property of a carrier which assists in the performance of the functions of a terminal,'" but "the nature of the facilities and the area in which they are located are as important as the use, … such as … service [that] is performed within a cohesive commercial area…."1714 Although a freight line will be compensated for the use of its track, freight lines may assert lack of capacity to avoid a forced agreement.1715 1714 Id.
From page 350...
... 350 B Improvements to or Elimination of Highway-Railway Grade Crossings Statutes 1.
From page 351...
... 351 Each state is required to "conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose."1718 Each state must report annually to the Secretary "on the progress being made to implement the railway-highway crossings program authorized by this section and the effectiveness of such improvements."1719 Moreover, the Secretary must submit a report to Congress every two years on the states' progress "in implementing projects to improve railwayhighway crossings."1720 Article 2. Railroad Obligations under State Law on Grade Crossings As discussed in subpart B.5 below, except when federal law preempts state law, "[m]
From page 352...
... 352 Cases 3. Compensation when a Local Government and a Railroad Company Agree on a Change of Grade In Bercel Garages, Inc.
From page 353...
... 353 Articles 4. Elimination or Modification of Railroad Crossings A law review article on access to the Hudson River in New York discusses the construction or elimination of railroad grade crossings.1728 As early as 1906, it was the policy of the state of New York to close grade crossings when possible.1729 The Commissioner of Transportation may approve the installation, elimination, or relocation of grade crossings.1730 In 1994, the Commissioner's authority was extended to private crossings.1731 The city and state assume the expense when the Commissioner decides that it is in the public interest to change a grade.1732 Otherwise, the railroad assumes half of the expense with the city and state dividing the remaining cost.1733 5.
From page 354...
... 354 and procedures required and the roles of the state or local government and the railroads "when undertaking elimination, relocation, construction, repair, and/or improvement of grade crossings." As the report notes, [t] he designated agency having authority to order improvements is also the one with statutory authority to order outright elimination.
From page 355...
... 355 and kept free of obstruction, to accommodate [the] expected water flow for the area…."1737 The roadbed drainage system must be maintained and be unobstructed.1738 Vegetation must be controlled so that it is not a hazard or otherwise obstructing warning signs, including signs at railroad crossings.
From page 356...
... 356 road extending two feet beyond the crossties.1743 A railroad is responsible for that part of the road four feet beyond the "traveled way or flush with the edge of the paved shoulder."1744 3. Applicability of the Manual on Uniform Traffic Control Devices to Railroad Crossings As discussed in part XXIX of the Report, the Manual on Uniform Traffic Control Devices (MUTCD)
From page 357...
... 357 Cases 4. Requirement of Notice of a Defective Condition at a Crossing to hold a Railroad Liable for the Condition In Goebel v.
From page 358...
... 358 5. Whether a Road Condition at a Crossing is an Unusually Dangerous Condition In Illinois Cent.
From page 359...
... 359 6. Applicability of a Statute to a Crossing that was Installed after the Road's Construction In Bowman v.
From page 360...
... 360 Article 7. Maintaining a Crossing and Crossing Signs and Warning Devices As discussed in a law review article, Virginia law requires a railroad to keep a public crossing in good repair, including when a railroad changes the grade of the tracks.1771 A railroad must "maintain a safe vertical relationship between trackage and street surfaces" and crossbucks must be placed at every public railroad crossing.1772 However, federal funds may be used to upgrade warning signs to reflective signs or to automatic warning signals at crossings.1773 Under federal law the use of federal funds to upgrade crossings results in federal preemption of claims under state law alleging that railroad crossing warnings were inadequate.1774 A railroad may only "install or upgrade a public grade crossing pursuant to an agreement with the Virginia Department of Transportation."1775 A railroad may not decide unilaterally to install a warning system at a crossing.1776 The article also discusses a railroad's responsibility to control vegetation that may impair a motorist's ability to see an oncoming train.1777 However, when vegetation is present motorists have an obligation to approach a track more carefully.1778 1771 Brent M
From page 361...
... 361 Although there is Virginia law on a railroad's obligation to sound a horn or bell when approaching a crossing, the FRA's regulations preempt state law.1779 The FRA's regulations require the use of locomotive horns at railroad crossings except in quiet zones.1780 However, under the standing train doctrine "‘there is no duty on the railway company to provide special warning or safeguards to motorists … to prevent collisions with cars standing on or moving across a public grade crossing.'"1781 D Failure by Motorists to Stop at Railroad Crossings Statutes and Regulations 1.
From page 362...
... 362 Cases 2. Passenger's Duty to Watch for Approaching Trains and Warn the Driver to Stop In Smith v.
From page 363...
... 363 Having determined that the passenger was not contributorily negligent as a matter of law, the court remanded the case to determine whether based on the evidence the passenger was contributorily negligent.1792 3. Railroad Conductor's Duty to Watch for Motorists who may Fail to Stop In Illinois Cent.
From page 364...
... 364 lookout for oncoming traffic and properly assumed that the truck would stop, the railroad was not liable for the driver's death.1799 E Liability of Railroads for Defective Conditions at Crossings Statutes and Regulations 1.
From page 365...
... 365 Cases 2. Preemption of Claims under State Law Alleging Defective Warning Signs Federal law preempts state claims based on railroads' alleged failure to maintain adequate warning signs at railroad crossings.1802 For example, in Norfolk S
From page 366...
... 366 under state law.1808 Because Tennessee had used federal funding to install warning devices at the crossing, federal law preempted the plaintiff's claims under state law for Norfolk Southern's alleged failure to maintain adequate warning devices.1809 3. Two-Step Approach in Determining Whether Tort Claims under State Law are Preempted by the Federal Railroad Safety Act In Zimmerman v.
From page 367...
... 367 Zimmerman's claim was not preempted.1815 Even if the defendant did not violate a federal standard of care or an internal rule, the court still had to decide whether any federal regulations covered the claim.1816 As discussed, a state claim is preempted by a federal regulation when the federal regulation "‘substantially subsumes the subject matter' of the claim."1817 The Third Circuit held that the FRSA did not preempt the motorist's claim of excessive speed1818 or failure to maintain a safe crossing area,1819 but the FRSA did preempt Zimmerman's claim that Norfolk Southern was negligent per se.1820 The federal regulations on mandatory protective devices preempted the motorist's state law claims that were based on the absence of such devices.1821 The Third Circuit affirmed the summary judgment in part and reversed it in part.1822 4. Liability for a Defect in a Crossing that Causes Personal Injury In Alumbaugh v.
From page 368...
... 368 Union Pacific for negligence and negligence per se.1824 The Eight Circuit held that under Kansas law there was no cause of action for negligence per se.1825 However, because the evidence was sufficient for the jury to find that Union Pacific should have known of the defective condition, the court reversed the trial court's grant of a summary judgment for Union Pacific on the negligence claim.1826 5. Liability of a Railroad for Failure to Keep a Crossing Clear of Vegetation In Bryant v.
From page 369...
... 369 and, in any event, because of other evidence the requested instruction would have been unlikely to have affected the verdict.1832 6. No Preemption of a State Law when the Federal Law does not Subsume the Subject Matter Regulated by State Law In Strozyk v.
From page 370...
... 370 regulations preempted both the claim for obstruction and the claim for failure to maintain the crossing.1840 The Third Circuit, however, held that although the federal regulations address adequate warning devices, the regulations did not "substantially subsume" the subject area of an obstruction impairing visibility; therefore, the federal regulations did not preempt the plaintiff's claim based on an obstruction to visibility.1841 The court held that, because the regulations "do not eclipse those duties ensuring safe grade crossings that are unrelated to warning devices," the federal regulations did not preempt the plaintiff's claim under state law that Norfolk Southern failed to maintain the crossing.1842 7. Whether State Law that Applied to Crossings was Preempted by a Federal Statute when Federal Regulations had not been Issued In Langemo v.
From page 371...
... 371 each train is approaching and entering upon each public highway-rail grade crossing,""1845 federal law did not preempt state law because only proposed rules were issued as of January 2000.1846 Furthermore, the court ruled that the railroad was not negligent per se for "failing to sound a whistle, because the crossing was not in a public road."1847 8. Whether the Public Utilities Commission Controlled a Railroad Crossing and Owed a Duty to the Plaintiffs because the Crossing was a Dangerous Condition of Public Property In Public Utilities Commission v.
From page 372...
... 372 provide traffic control and/or warning signals, signs, markings or other devices necessary to warn of a dangerous condition…."1851 The court reviewed the duties of the former Railroad Commission, now the PUC, with respect to railroad tracks, as well as decisional authority, before holding that the PUC's "regulatory authority over the crossing does not establish control of that property within the meaning of section 830"1852 and that "the PUC's right to inspect the crossing for safety violations and to close the crossing to vehicular and pedestrian (but not railroad) traffic does not establish control."1853 Furthermore, "no evidence was offered that the PUC ever actively maintained the railroad crossing through any form of maintenance or repair."1854 Articles 9.
From page 373...
... 373 the relevant state law."1857 When a federal regulation merely touches upon a matter regulated by state law there is no federal preemption.1858 The writer notes that in Norfolk Southern R.R.
From page 374...
... 374 In Henning v. Union Pac.
From page 375...
... 375 (1) Except as otherwise provided under subsection (2)
From page 376...
... 376 Subsection (3) provides that "[i]
From page 377...
... 377 land, except land owned by the state.'"1877 Oncor argued that the case should be remanded to consider the effect of the new law.1878 The Supreme Court of Texas held that because the only purpose of the new statute was "to provide for rights that can actually be exercised" the statute waived the Authorities' governmental immunity.1879 However, the Authorities' rail lines did not come within the exception for state-owned land.1880 5. Utility's Expropriation of Land for a Crossing as a Public Use Under a Louisiana statute, a common carrier such as a pipeline company may condemn private property.1881 In Exxon Mobil Pipeline Co.
From page 378...
... 378 In later reversing and remanding the case the Supreme Court of Louisiana held that the use of the expropriated property would benefit the public because the road would allow the pipeline company to inspect its pipeline that provides petroleum to the public.1886 Therefore, ExxonMobil was held to have the ability to expropriate a right of way across the rail line.1887 6. Whether an Independent Transmission Company could avail itself of a "Pay-and-Go" Procedure Used by Utilities to Cross a Railroad Right of Way At issue in Hawkeye Land Company v.
From page 379...
... 379 turn deeded the easement rights to Hawkeye Land."1892 Hawkeye argued that it did not acquire its rights directly from a railroad and, thus, the crossing statute did not apply to it or to ITC Midwest, "because [Hawkeye] is not a ‘railroad' and ITC Midwest is not a ‘public utility' within the meaning of the statute."1893 The court held that the definition of a public utility in Iowa Code § 476.1 did not include independent transmission companies.1894 Rather, the statute only applied to a "direct transaction between [a]
From page 380...
... 380 relevant to a situation when a utility does not occupy a railroad right of way but has been authorized to cross it. When a railroad easement includes a license for a utility, the railroad's abandonment of the property may affect the utility's right to the property.
From page 381...
... 381 G Compensation for Damage Occasioned by the Construction, Relocation or Closure of Crossings In Pennsylvania, compensation for damages, after proper notice and hearing, is determined by the Pennsylvania Public Utility Commission.1907 "Such compensation … shall be borne and paid … by the public utilities, municipal corporations, municipal authority or nonprofit organization authorized under section 2702(h)
From page 382...
... 382 Cases H Railroad Liability for Injuries at Private Crossings 1.
From page 383...
... 383 Supreme Court reversed the Court of Appeals' decision and remanded the case to the circuit court. The court ruled that the appellate court and the circuit court had erred because "there [was]
From page 384...
... 384 use' and incorporated into the state, county, or local road system.
From page 385...
... 385 per hour to inform the railroad prior to making a crossing."1930 On the other hand, by reason of Miss.
From page 386...
... 386 recommendations at private crossings."1936 The court, however, ruled that on remand on the railroad's claim that the crossing was a private one, the trial court would have "to determine whether control remains an issue. We do not find that the trial court abused its discretion in permitting some evidence on the issue of the Railroad's control over and maintenance of the subject crossing."1937 5.
From page 387...
... 387 The court also rejected Cook's claim "that CSXT was negligent because the crossbucks at the railway crossing [did] not comply with Ohio law" for the reason that the state law was "preempted by the Federal Railroad Safety Act…."1942 6.
From page 388...
... 388 7. Calculation of Offset in Settlement with a Railroad in Claim against a Private Party for Creating a Hazardous Condition near Railroad Tracks In RGR, LLC v.
From page 390...
... 390 2. Liability for the Cost of a Bridge Required for Drainage In Illinois, when a drain apparently owned by a district authority (district)
From page 391...
... 391 Cases 4. Whether a Railroad's Agreement with a Transit Company to Maintain a Bridge Relieved the Railroad of its Obligation under § 93 of the New York Railroad Law In City of Middletown v.
From page 392...
... 392 5. Whether a Railroad's Duty under § 93 of the New York Railroad Law to Maintain and Repair a Bridge included a Duty to Erect Signage In Aramini v.
From page 393...
... 393 Railroad "failed to provide evidence sufficient to establish that the expansion joint was not part of ‘the framework of the bridge and its abutments'" and that there were "triable issues of fact … whether the expansion joint constituted a defective condition."1971 7. Whether the "Second Comer" Doctrine Imposed a Duty of Complete Reconstruction of a Bridge In Baltimore & Ohio Railroad Company v.
From page 394...
... 394 doctrine did not include the rebuilding of a structure.1976 The court held that the commissioners' attempt to relinquish the county's common law rights as a first comer was "beyond the scope of their authority[] and therefore ultra vires."1977 Importantly, however, the court also rejected the "appellant's alternative argument that the second comer doctrine did not impose upon it the duty of completely reconstructing Bridge 5A."1978 8.
From page 395...
... 395 was responsible for the cost of reconstruction of another bridge over B&O tracks in an area known as Morrell Park."1982 In Kuchta, [t] he Court of Special Appeals held that the B&O was liable for paying the entire cost of reconstruction of the Morrell Park bridge and that a 1907 agreement, which B&O contended required the City to pay one-half of the reconstruction cost, was void.
From page 396...
... 396 burden of paying for the improvement of crossings."1988 The court also noted that "language was added to ‘limit the contribution for a railway-highway crossing elimination to 10 percent from all railroads involved in a particular project, and not expect 10 percent contribution from each railroad.'"1989 The court held that "[t] o permit states to recover from a railroad the cost of constructing or reconstructing a bridge under the second comer doctrine would be self-evidently inconsistent with Congress's intent to have at least ninety percent of that cost borne by governmental authorities on federally funded projects" and that "once a state or local government agrees to the federal funding of a railroad crossing construction or reconstruction project, it cannot seek to impose the cost of that project upon the railroad."1990 In discussing the applicable federal regulations, (see 23 C.F.R.
From page 397...
... 397 9. Liability for Damage to a Bridge Owned by a Railroad when the Bridge is Struck by a Vessel In Union Pac.
From page 398...
... 398 Oregon rule.1999 The district court had eliminated the Oregon rule by applying the Pennsylvania rule:2000 "‘where any party violates a statutory or regulatory rule designed to prevent collisions, that party has committed per se negligence … and [the party] has the burden of proving that its statutory fault was not a contributing cause of the accident.'"2001 The district court ruled that Union Pacific violated the Truman-Hobbs Act as evidenced by the Coast Guard Order.
From page 399...
... 399 district court should determine whether the "Oregon presumption is rebutted by the Coast Guard's Order to Alter…."2006 10. Liability for Damage to Bridge Used but not Owned by a Railroad In Louisville & Nashville R.R.
From page 400...
... 400 Southern Railway only granted L&N the right to use Southern Railway's bridge.2014 The court held that the agreement did not convey an interest in real property; that the right under the agreement to use the bridge was not permanent; and that L&N did have a joint duty with Southern Railway to maintain the tracks on the bridge.2015 Furthermore, L&N suffered only the "loss of an economic expectancy," not a "proprietary loss."2016 Thus, the Fifth Circuit affirmed the district court's grant of a summary judgment for the tugboat and its owner.2017 11. Liability for Damage to a Railroad Bridge during Hurricane Katrina In BNSF Ry.
From page 401...
... 401 Browning Oil under the indemnification clause in their contract.2023 The court affirmed a summary judgment for Browning Oil on the claim by Parker under the contract for indemnification.2024 12. Whether a Railroad's Operating Agreement with Amtrak was a Valid Prior Cost Allocation Agreement divesting the Public Utility Commission of Jurisdiction to Allocate Costs In Norfolk Southern Railway Company v.
From page 402...
... 402 Norfolk, intended to pay for the Bridge removal."2029 Thus, the PUC was not precluded from allocating costs of the bridge removal project to Norfolk Southern.2030 Article 13. State Public Utility Commission Authority to Allocate the Expense of Bridge Repair to a Railroad A law review article discusses Wheeling & Lake Erie Ry.
From page 403...
... 403 The state court upheld the PUC's decision that the railroad should repair the bridge at its own expense.2036 Because the ICCTA did not explicitly regulate the safety of railroad crossings, the Act did not preempt the state statute.2037 Finally, the article observes that the ICCTA grants jurisdiction only to the STB on construction.2038 C Liability for Damage to Other Property Statute 1.
From page 404...
... 404 that caused flood damage to hundreds of nearby homes.2042 A district court held that a Wisconsin statute provided the only remedy for relief from claims for flooding caused by the maintenance of railroad crossings.2043 The statute prohibits the obstruction of water flow when a railroad company builds a track across a drainage area and provides that a landowner may sue in inverse condemnation for damages.2044 However, because the plaintiffs did not comply with the required statutory notice, the court held that the plaintiffs were not entitled to relief.2045 3. Liability of a Railroad for Nuisance and Contamination of Property In Redevelopment Agency of City of Stockton2046 two railroad companies had maintained tracks on a parcel of land contaminated by petroleum.
From page 405...
... 405 the railroads to remediate any remaining contamination.2048 However, the Ninth Circuit held that if the railroads did not create or assist in the creation of a nuisance they could not be held liable unless they acted unreasonably in failing to recognize or stop the nuisance.2049 The court held that the railroads were not liable for creating the nuisance just because they had installed a drain or were in possession of the property.2050 As noted, the California statute uses the definition in CERCLA for the term "responsible party."2051 Under CERCLA a responsible party is someone who owned or operated any facility at the time of the disposal of a hazardous substance.2052 Because the sale of the land by the state to the railroads was invalid, and because the railroads' easement did not constitute ownership, the court held that the railroads were not owners.2053 There was nothing to suggest that the railroads were operators within the meaning of the term under the state law's CERCLA provision.2054 Thus, the railroads were not liable because they were neither owners nor operators under the CERCLA definition incorporated in the state statute.2055 The court reversed the grant of a 2048 Id.
From page 406...
... 406 summary judgment for the Redevelopment Agency and remanded the case for the entry of a summary judgment for the railroads.2056 4. Whether the ICCTA Preempts Tort Claims under State Law for Water Damage Caused by a Railroad In Emerson v.
From page 407...
... 407 ICCTA.2062 Thus, the court held that the ICCTA does not expressly preempt the state tort claims.2063 Although the STB has found that the ICCTA's preemption clause does not preclude some state actions for damage caused by railroad property,2064 the Tenth Circuit held that a court must analyze the facts to determine whether allowing a remedy for an injury would interfere with railroad transportation.2065 Thus, the Tenth Circuit held that the ICCTA did not expressly preempt the state tort claims for water damage caused by KCS but that the district court had insufficient facts to determine whether the ICCTA impliedly preempted the claims; thus, the district court erred in granting a summary judgment.2066 5. Claim for Gas and Smoke Caused by a Railroad Tunnel In Richards v.
From page 408...
... 408 the existence of a public nuisance, the Supreme Court held that gas and smoke directed toward and into the plaintiff's house constituted a private nuisance.2069 Thus, the landowner could recover for the damage caused by the gas and smoke from the tunnel.2070 2069 Id., 233 U.S.
From page 410...
... 410 Statutes and Regulations B Section 163 of the Federal-Aid Highway Act of 1973 The Federal-Aid Highway Act of 1973 authorized the Secretary of Transportation to implement demonstration projects to improve safety at railroad-highway crossings.2072 Section 163 of the Act lists many cities in which the Secretary of Transportation was permitted to carry out demonstration projects for the relocation or removal of railroad lines or the construction of overpasses at railroad-highway crossings to improve highway safety.2073 Section 230 required states to identify projects to eliminate hazards at railroad-highway grade crossings for the Safer Roads Demonstration Program but emphasized that funds may not be used to eliminate a hazard.2074 C
From page 411...
... 411 Articles D Benefits of Using a Confidential Close Call Reporting System The C3RS is funded by the FRA, which is authorized to sponsor projects that would improve railroad safety.2076 A report by the FRA addresses the C3RS Demonstration Project and its importance in reducing railroad accidents.2077 Because the traditional data collected from railroad accidents has decreased because of a decline in the number of accidents, the FRA has placed an emphasis on close call reporting to improve its ability to analyze risks to railroad safety.2078 The article notes the benefits of implementing a close call reporting system and discusses how a similar reporting system is benefiting the railroad industry in the United Kingdom.
From page 412...
... 412 The United Kingdom implemented the Confidential Incident Report and Analysis System (CIRAS) to improve railroad safety.2081 Reports are sent to an independent third party for the removal of all personal identifying information to ensure confidentiality and to encourage individuals to report close calls.2082 CIRAS creates reports that analyze close calls for distribution to the railroad industry so that railroad companies may modify their internal policies to reduce further close calls.2083 E
From page 413...
... 413 arisen in using the system: (1) event analysis is slowed by the process of selecting peer review team members and by the large number of members; (2)
From page 414...
... 414 occurred, or a third party creating a report may miss important information.2093 Finally, it is said that some members of peer review teams have limited knowledge of railroad operations.2094 That is, a team may not be familiar with all areas of railroad operations, a situation that may lead a team to identify only those unsafe conditions with which they are familiar.2095 Nevertheless, the authors conclude that the system is worthwhile because it is capable of improving and adapting to challenges.2096 2093 Id.
From page 416...
... 416 terms of a deed to construe its intent to convey an easement or a fee simple interest, and that some courts rely on additional factors to differentiate between the grant of an easement or of a fee simple interest. Sections E and F, respectively, summarize cases on what is meant by the term right of way, whether a railroad is permitted to lease the subsurface of its right of way for non-railroad purposes, and whether a railroad has a right to exclude others from its right of way.
From page 417...
... 417 railroad for railroad purposes (construction and maintenance)
From page 418...
... 418 Statutes C State Law on Whether an Adjoining Landowner has a Right to an Abandoned Right of Way 1.
From page 419...
... 419 remain on the right-of-way subject to payment by the utility of the fair market value of an easement for the facilities."2113 3. Indiana An Indiana statute applies when "a railroad does not own the right-of-way fee."2114 First, when "a railroad abandons its right to a railroad right-of-way, the railroad's interest vests in the owner of the right-of-way fee with a deed that contains a description of the real property that includes the right-of-way."2115 Second, however, when "a deed described in subsection (b)
From page 420...
... 420 department shall seek to negotiate the purchase of the abandoned portion of the line. In making this determination, the department shall consider, among other criteria considered significant by the department, future economic development activities and opportunities in the area served by the abandoned railroad service.2118 Furthermore, in Maine [n]
From page 421...
... 421 the defendants argued that the "title to the fee in this strip was retained by the grantors when the land on each side was conveyed." 2121 The plaintiffs argued that "the same rule which applies in the case of land bounded on a highway should apply to that adjoining a railroad."2122 The court explained that [c] ourts have attempted to justify the presumption that title to land bounded on a highway extends to the center of the way on the theory that the grantor could not have intended to retain the ownership in a long narrow strip of land of no apparent benefit to himself.
From page 422...
... 422 5. North Carolina A North Carolina statute provides: Whenever a railroad abandons a railroad easement, all right, title and interest in the strip, piece or parcel of land constituting the abandoned easement shall be presumed to be vested in those persons, firms or corporations owning lots or parcels of land adjacent to the abandoned easement, with the presumptive ownership of each adjacent landowner extending to the centerline of the abandoned easement.2127 6.
From page 423...
... 423 way in fee simple there must be evidence of the grantor's intention to convey a fee simple interest to overcome the presumption that the intent was to convey only an easement.2130 2. Significance of Language in a Deed Indicating Conveyance of an Easement In Dale Henderson Logging, Inc.
From page 424...
... 424 intention clearly appears in the deed.'"2133 The court agreed with the trial court that "the only reason to insert the restriction ‘[t] his conveyance of right of way is for Railroad purposes only' is to make clear that a fee interest is not what the deed conveys."2134 Thus, the state transportation department held an interest in the corridor that crossed the DHL property, an easement as discussed below that was not abandoned by Maine Central.
From page 425...
... 425 purpose of the corridor remains the resumption of rail service."2137 The court affirmed the trial court's decision that the "DOT holds an easement that has not been abandoned [to the DHL] portion of the corridor[]
From page 426...
... 426 phrase ‘right of way' in railroad grants is indicative of conveying an easement and not a fee simple interest."2143 To determine whether the deeds at issue that conveyed a right of way conveyed an easement or an interest in fee simple, the court applied factors previously established in Brown v. State:2144 (1)
From page 427...
... 427 E Meaning of the Term Right of Way 1.
From page 428...
... 428 Union Pacific Railroad Company for subterranean use of railroad property.2154 The court cited several federal and state court cases defining a right of way to determine what the railroad's property interest was. The court held that Union Pacific did not have the right to collect rent from SFPP based on the acquisition of a right of way under the General Right-of-Way Act of 1875, because the Act did not make "the subsurface the ‘property of the railroad.'"2155 The court stated that the previous legislation, referred to in the opinion as the pre-1871 Acts, required railroads to use their rights of way for railroad purposes only; the leasing of the subsurface to generate profits is not a railroad purpose.2156 However, the railroad claimed title to some of the land over which Congress did not grant the railroad a right of way; thus, the court remanded the case to the trial court to determine which land was owned by Union Pacific and which was land over which Union Pacific merely had a right of way.2157 Although Union Pacific could collect rent for easements over its own property, the railroad could not collect rent for the pipelines under its rights of way.2158 The court held that the 1875 Act granted more than a "mere" easement because "[t]
From page 429...
... 429 were not included as part of the railroad right of way because such rights do not further the purpose of constructing and running a railroad.2160 F Railroad's Right to Exclude Others from its Right of Way In Western Union Tel.
From page 430...
... 430 if a railroad's right of way was an easement it was one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it corporeal, not incorporeal, property.... Unlike the use of a private way -- that is, discontinuous -- the use of land condemned by a railroad is perpetual and continuous....
From page 431...
... 431 wires because such a right is one that only an owner of property in fee simple may convey.2170 Furthermore, landowners have argued that a utility's use of a right of way after a railroad has abandoned the right of way is a taking under the Fifth Amendment requiring the United States to pay just compensation because the abandonment returns the property to an unencumbered state.2171 The aforesaid rule applies to a right of way over land previously owned by the United States that was conveyed to a private owner as an easement.2172 It is argued that the term utility is not included in the term railroad purpose in an easement conveyed to a railroad.2173 Furthermore, there is a "general principle that [the] termination of an easement will terminate a sub-easement."2174 The principle implies that even if a railroad had a right to grant a sub-easement to a utility company any purported sub-easement ceases when a railroad abandons the line.2175 A sub-easement holder's rights depend on the rights, if any, of the holder of the easement.2176 Some states have addressed the issue by statute.
From page 432...
... 432 still permit a private landowner to seek compensation for the continued use of the land.2177 The courts could address the issue by invoking the "shifting public use doctrine," meaning that "public easements that are transformed to meet changing technologies, but which arguably retain some character of the original easement, will not be found to be extinguished or abandoned."2178 In this context, shifting does not mean that the courts have broadened the meaning of what qualifies as or constitutes a public use but refers to the conversion of a railroad corridor reserved for one public use to another public use.2179 The article argues that the shifting public use doctrine permits easements used for one purpose to be converted to another public purpose so as not to result in an abandonment of an easement by the railroad and that property owners accordingly have no claim because a taking would not have occurred.2180 Thus, "[w] hen property has been taken for a public use, and full compensation made for the fee or a perpetual easement, its subsequent appropriation to another public use ...
From page 433...
... 433 way.2182 In the mid to late 1800s, several states such as Indiana amended their constitutions to prevent railroads from abusing their power of eminent domain. The amended constitutions required "private utilities, such as railroads, electric utilities, and telecom companies" to pay fair value before taking property.2183 The author argues that landowners have learned that "telecommunications companies have taken and used their land with full knowledge that they had no legal rights to do so."2184 According to the author, telecommunication companies entered onto land by claiming that they had authority to lay cables with the permission of the railroad companies that held rights-of-way.2185 A 1983 study commissioned by the American Association of Railroads "concluded that railroad rights-of-way often are limited to surface rights or restricted for railroad purposes;" therefore, telecommunication companies had no legal authority to lay cables on railroad rightsof-way with or without the permission of the railroad companies.2186 The article states that CSX's chief negotiator for fiber-optic cable testified in a deposition that CSX had no right to authorize telecommunication companies to install fiber-optic cables on railroad rights-of-way.2187 The National Oceanic and Atmospheric Association has reported that the "value of the right to install and maintain conduits for fiber optic cables is reasonably estimated [to be]
From page 434...
... 434 between $40,000 and $100,000 per mile."2188 In some class action settlements involving AT&T and abandoned railroad rights of way "landowners have received compensation ranging from $125,700 per mile in Connecticut to $5,300 per mile in Maine, with the average compensation close to $45,000 per mile."2189 However, the compensation is much less for active railroad rights-of-way and "range[s] from $13,728 per mile in Connecticut and Virginia to $8,976 per mile in Ohio with the average compensation in excess of $10,500 per mile."2190 The article lists over twenty cases in which landowners have won class action lawsuits against railroads or telecommunication companies in disputes over compensation for the use of rights-of-way with only four cases having been decided against the landowners.2191 2188 Id.
From page 436...
... 436 domain to take property as states have to condemn property.2192 States, including California,2193 Texas,2194 Pennsylvania,2195 New York,2196 and Virginia2197 have a provision in their state constitutions requiring that the state pay just compensation for a taking of any property for a public use.2198 In Virginia, the state constitution provides in part that "[n] o private property shall be damaged or taken for public use without just compensation to the owner thereof."2199 As in many other state constitutions, Virginia's constitutional provision adds the term "damaged,"2200 a term not included in the Fifth Amendment to the United States Constitution.2201 A property owner may file an inverse condemnation claim and receive just compensation for a taking under § 8.01-187 of the Virginia 2192 See, e.g., Buck v.
From page 437...
... 437 Code.2202 2. State Limitations on the Use of Eminent Domain Some states have enacted laws that limit railroads' use of eminent domain in the taking of homes or sacred locations.
From page 438...
... 438 railroad could validly exercise the right of eminent domain to obtain property for the purpose of handling railroad business with nearby industrial or similar plants.
From page 439...
... 439 railroad company and brought suit against the railroad in Pennsylvania, they alleged that the brokers employed by the railroad misrepresented the railroad's condemnation powers to enable the railroad to obtain the properties at more favorable prices.2211 The property owners argued that the condemnation did not meet the public use requirement because the spur track only connected to a private coal mine.2212 Furthermore, they argued that the spur track did not have the approval of the ICC and that the track was not part of the railroad's chartered area.2213 Rejecting the plaintiffs' arguments, the Third Circuit held that the railroad had the authority to condemn the property at issue but remanded the case on the issues of fraudulent misrepresentation, conspiracy, and racketeering.2214 7. Spur Tracks for Private Railroads In McCarthy v.
From page 440...
... 440 defined "necessary" as "not … an absolute and unconditional necessity, as determined by physical causes, but a reasonable necessity, under the circumstances of the particular case, dependent upon the practicability of another route … considered in connection with the relative cost to one, and probable injury to the other.2217 The Ninth Circuit held that the taking was an appropriate exercise of the power of eminent domain because the evidence established that the spur to connect the logging holding areas with the railroad qualified as "necessary" for a right of way under the statute.2218 Other courts have held that railroads may take property adjoining the rails for other ancillary uses including stock pens,2219 sidings and lateral railroads,2220 and poles for power lines for electric railroads,2221 as well as spur tracks.2222 C Condemnation of Railroad Property Statutes 1.
From page 441...
... 441 created the Surface Transportation Board (STB) and gave it jurisdiction over transportation by rail carriers.2224 Furthermore, the STB has exclusive jurisdiction over "the construction, acquisition, operation, abandonment or discontinuance" of rail tracks "even if the tracks are located, or intended to be located, entirely in one State."2225 Therefore, the ICCTA preempts any state or local regulation that would interfere with the STB's exclusive jurisdiction over a railroad's operation and construction.
From page 442...
... 442 2. State Limitations on Condemnation of Property Owned or Operated by Railroads In some states the condemnation of railroad property differs from other types of condemnations of property.2229 Many states have statutes that govern the exercise of eminent domain with respect to railroad property.2230 State legislatures frequently permit the state or public utility companies to condemn land owned or operated by railroads for use in establishing telephone lines or other public utilities.2231 For example, laws in California,2232 Oregon,2233 Oklahoma,2234 and Georgia2235 permit the state to acquire a right of way over railroad property but not to interfere with the railroad's operation.
From page 443...
... 443 way on railroad property when the acquisition is necessary for the construction or location of public roads.2237 The Oregon Department of Transportation (ODOT) may negotiate with a railroad to acquire a right to use or occupy property.2238 However, if ODOT and a railroad are unable to agree the state may commence a condemnation proceeding to acquire the right of way for a highway.2239 The applicable statute also states that it does not authorize any use of land that would interfere with the operation of a railroad.2240 Case 4.
From page 444...
... 444 additional tracks and affected its operations.2244 Therefore, based on preemption under the ICCTA on an "as applied" basis,2245 the Seventh Circuit held that the condemnation was preempted because the condemnation would interfere unreasonably with Union Pacific's operation.2246 Although Union Pacific could agree to an arrangement by contract that interfered with its operations, the state could not do so through its use of eminent domain.2247 In Reading Blue Mountain & Northern Railroad Co.
From page 445...
... 445 the drilling.2252 Cases D Nature of Property Interest taken in Eminent Domain 1.
From page 446...
... 446 land itself, not an easement, was conveyed outright to the railroad through eminent domain, leaving no reversionary interest.2258 E Difference between Eminent Domain and Zoning 1.
From page 447...
... 447 police powers.2263 The court observed that although owners receive compensation for land taken by eminent domain, they are not compensated for the effects of changes in zoning or in the zoning laws.2264 Therefore, the court stated that "[t] he absence of compensation makes the police power much harsher in operation than the power of eminent domain and, hence, subject to stricter limitations." 2265 However, even if FWDC did not have to comply with the zoning regulations, the court held that the railroad would have to obtain a construction permit from the city.2266 Article 2.
From page 448...
... 448 The logic of that opinion can be traced as follows: (1) the state has a sovereign interest in railroads; (2)
From page 449...
... 449 3. Severance Damages In State by State Highway Commissioner v.
From page 450...
... 450 value of the adjoining property) may be compensated fairly in damages.2281 Article 6.
From page 451...
... 451 Railroad Legal Issues and Resources PART II
From page 453...
... 453 B Policies and Procedures Applicable to Drug and Alcohol Testing Statutes and Regulations 1.
From page 454...
... 454 The statute authorizes the Secretary to issue regulations regarding rehabilitation programs for drug and alcohol use or abuse.2292 The regulations must comply with the United States' international obligations,2293 which are important with respect to the drug and alcohol testing of employees of foreign railroads who enter the United States to work.2294 After consultations with the governments of Canada and Mexico, the Federal Railroad Administration (FRA) issued a final rule in 2004 that applies to the testing of such foreign railroad employees.
From page 455...
... 455 describes in detail prohibitions that apply to railroad employees,2301 as well as post-accident toxicological testing,2302 testing for cause,2303 identification of troubled employees,2304 preemployment tests,2305 random alcohol and drug testing programs,2306 and testing procedures.2307 Case C The Fourth Amendment Applies to Drug and Alcohol Testing of Railroad Employees Skinner v.
From page 456...
... 456 district court seeking an injunction to prevent the implementation of the regulations.2310 The Supreme Court held that railroad companies act as agents of the federal government in carrying out drug and alcohol tests as required by the regulations; therefore, the FRA's rule on the railroads' testing of employees for the use of drugs and alcohol implicated the Fourth Amendment's protection from unreasonable searches and seizures.2311 The Court stated: We are unwilling to conclude, in the context of this facial challenge, that breath and urine tests required by private railroads in reliance on Subpart D will not implicate the Fourth Amendment. Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party's activities, … a question that can only be resolved "in light of all the circumstances….." The fact that the Government has not compelled a private party to perform a search does not, by itself, establish that the search is a private one.
From page 457...
... 457 pertaining to the fitness of covered employees, we believe that it is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired.2315 The Court held that drug and alcohol testing of employees as required by the FRA's regulations was reasonable under the Fourth Amendment.2316 Statutes and Regulations D 2008 Modifications and More Stringent Requirements for Returning Employees In 2008, the DOT modified its drug and alcohol testing requirements by making them more stringent for employees who return to work after failing a drug test and completing a drug treatment program.2317 In particular, the DOT required that tests for such employees must be conducted under direct supervision to prevent cheating.2318 In BNSF Railway Co.
From page 458...
... 458 mandatory use of direct observation.2321 In addition, the court balanced the need for transportation safety with employees' right to privacy and concluded that the modified regulations did not violate the Fourth Amendment's prohibition on unreasonable searches and seizures.2322 E 2014 Proposed Regulations to Expand Alcohol and Drug Testing to Employees Performing Maintenance-of-Way Activities Pursuant to the congressional mandate in the Rail Safety Improvement Act of 2008, FRA "is proposing to expand the scope of its alcohol and drug regulations to cover employees who perform maintenance-of-way (MOW)
From page 459...
... 459 The FRA intends to include MOW employees among those who may be tested for alcohol or drugs. The reason is that "MOW employees are at a high safety risk because they work along railroad track and roadbed and may suffer injury or death as a result of being struck by trains or other on-track or fouling equipment."2327 The notice of proposed rulemaking cites recent railroad accidents as support for the need to test MOW employees.
From page 460...
... 460 The National Transportation Safety Board (NTSB) conducted a ten-year review of railroad accidents involving MOW employee deaths and found a positive rate of 19.23% compared to a 6.56% for covered employees in PAT testing.2332 The proposed regulations define MOW activities to include: (1)
From page 461...
... 461 activities subject to part 219 (again, both covered service and MOW activities) ."2337 The purpose of the new terms is to encompass all activities and individuals subject to part 219 and to eliminate more awkward terms such as maintenance-of-way employee.2338 The proposed regulations would grandfather all current MOW employees from preemployment testing; thus, only MOW employees hired after the effective date would be subject to pre-employment testing.2339 Case F
From page 462...
... 462 promulgate regulations created a right that was intended to benefit the plaintiff.2343 Moreover, the statute did not expressly withdraw his right to relief under § 1983.2344 Nevertheless, the court did not grant either party's motion for a summary judgment because the issue of whether the plaintiff knew of his right to request independent testing after learning of his positive drug test was a question of material fact.2345 Articles G Expansion of Suspicionless Searches A law review article entitled "Special Needs and Special Deference: Suspicionless Civil Searches in the Modern Regulatory State" examines the Supreme Court's expansion of the special needs exception, as seen in Skinner, supra, to the individualized suspicion and warrant requirements of the Fourth Amendment.2346 The article argues that the Supreme Court is "applying varying levels of deference in its special needs jurisprudence, depending on the degree of correlation between the government's asserted special need and the predefined regulatory objective at issue."2347 The article urges that although the Supreme Court's approach may increase coherence and predictability in special needs cases the approach should be limited in scope and should not outweigh other factors.2348 2343 Id.
From page 463...
... 463 H Genetic Testing As the Supreme Court stated in Skinner, "[i]
From page 465...
... 465 treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person….;" and as one "who accepts or accepted any hazardous substances for transport to disposal or treatment facilities … from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance…."2355 There is no liability when a person subject to CERCLA is able to "establish by a preponderance of the evidence" that any release or threatened release was caused solely by an act of God, act of war, or "an act or omission of a third party other than an employee or agent of the defendant" or under other circumstances as are further described in the statute that will absolve one of liability.2356 Under CERCLA no person is liable for damages or costs "as a result of actions taken or omitted in the course of rendering care, assistance, or advice in accordance with the National Contingency Plan or at the direction of an [on-scene] coordinator…."2357 State and local governments are protected from liability as long as the costs or damages were not "a result of gross negligence or intentional misconduct by the State or local government."2358 2.
From page 466...
... 466 jurisdiction to federal district courts over all controversies that arise under CERCLA,2360 including actions for damages to natural resources, recovery of costs, contribution, subrogation, and recovery of indemnification payments.2361 Section 9613 provides that the courts will use the administrative record in reviewing "the adequacy of any response action taken or ordered by the President…."2362 The statute also provides time limitations of between three to six years for filing an action for the recovery of costs for violations of § 9607.2363 Congress has authorized the President to enforce the provisions of CERCLA.2364 However, by Executive Order the EPA and other federal agencies have been delegated the authority that is granted to the President under CERCLA.2365 The enforcement process begins with the EPA identifying the potentially responsible parties (PRPs) that contributed to contamination.2366 After the PRPs are identified, the EPA may conduct a cleanup of a site using Superfund money and seek to recover the cost of the cleanup from the PRPs.2367 Alternatively, the EPA may issue a unilateral administrative order (UAO)
From page 467...
... 467 to clean up the site.2368 The "EPA has adopted an ‘enforcement first' policy for removal and remedial actions at CERCLA sites" and "will first pursue the PRPs to conduct the site response rather than conduct the cleanup with Superfund money."2369 In addition, "EPA may seek to obtain PRP participation through settlements, unilateral orders, or litigation."2370 The EPA's "legal documents … describe the requirements of the response action."2371 The EPA may require the PRPs to enter into an administrative order on consent (AOC) or a consent decree (CD)
From page 468...
... 468 Cases 3. Unilateral Administrative Orders Issued by the EPA do not Violate the Fifth Amendment In General Electric v.
From page 469...
... 469 pay if they refuse to comply and that the "PRPs' stock price, brand value, and costs of financing ... are adversely affected by the issuance of a UAO."2382 The court held that the PRPs do not face a Hobson's choice by paying to comply or by paying fines because the PRPs are only fined when a federal court finds that a PRP willfully failed to comply without sufficient cause with a proper UAO and further finds in the court's discretion that the fines and treble damages are appropriate.2383 The District of Columbia Circuit held that GE's consequential damages did not constitute a deprivation of rights because although GE may have suffered reputational harm GE must prove that the EPA deprived the company of a benefit to which it had a legal right2384 or imposed a "stigma so severe that it ‘broadly precludes' [GE]
From page 470...
... 470 4. Apportionment under CERCLA of Costs among Responsible Parties Burlington Northern and Santa Fe Railroad Co.
From page 471...
... 471 California facility" but that "the District Court reasonably apportioned the Railroads' share of the site remediation costs at 9%." Because the owner-operator of the Arvin facility Brown & Bryant was insolvent, no liability for the cost of the cleanup was apportioned to it; therefore, the nine percent allocated to the railroads was the only cost not covered by the state.2393 Statute 5. Liability under State Law that Incorporates CERCLA Under the Polanco Act in California "a local redevelopment agency can recover the costs it incurs for contamination remediation within a redevelopment project area from any ‘responsible party.'" 2394 As for the connection between CERCLA and the Polanco Act, [t]
From page 472...
... 472 1968, because of highway construction the state of California entered into an agreement with the Railroads' predecessors-in-interest to relocate railroad tracks from the proposed site of an interchange to a nearby state-owned parcel.2397 When BNSF and Union Pacific acquired an interest of some nature is not clear, but the state did not transfer the land by deed to the Railroads until 1983.2398 Between 1968 and 1983 the Railroads installed a french drain beneath the roadbed to facilitate drainage.2399 The french drain acted as a conduit or pathway for petroleum contaminants likely caused by a spill in 1974 from a nearby petroleum facility.2400 After the Railroads sold their interest to the Redevelopment Agency of the City of Stockton (Redevelopment Agency) , and after the Agency sold a portion to a commercial developer, site excavation in "Area 3" of the property revealed contamination.2401 The Redevelopment Agency sought to recover from the Railroads the cost of the remediation of the property.
From page 473...
... 473 Because the Railroads' conduct with regard to the specific nuisance condition -- the contamination -- was not active, affirmative, or knowing, the Railroads simply did not "create or assist in the creation" of the nuisance on the Property. … While the Railroads may have acted affirmatively with regard to the installation of the french drain, that conduct was wholly unrelated to the contamination.2402 Second, the Railroads were not liable for nuisance as "possessors of the Property:" No evidence has been adduced that the Railroads had actual knowledge of the contamination while they were in possession of the Property.
From page 474...
... 474 of.'"2408 The Ninth Circuit agreed with the district court that the "Railroads were not liable under the Polanco Act's CERCLA provision because they were not ‘owners' or ‘operators' within the meaning of CERCLA."2409 It is somewhat unclear what the deed in 1983 transferred to the Railroads because one of the Redevelopment Agency's arguments was that "the Railroads were … ‘owners' of the Property within the meaning of CERCLA when the petroleum release occurred because … they held an easement or license to operate trains over the Property pursuant to the Agreement." 2410 In any case, the court held that having an easement did not make the Railroads an owner.2411 The Redevelopment Agency's argument that the Railroads had an easement may have been based on the aforesaid Agreement that allowed the Railroads to construct and use track on the property "as licensed by the Agreement…."2412 Nevertheless, the Ninth Circuit agreed with the district court that the Railroads were not owners under CERCLA.2413 The Ninth Circuit affirmed that part of the opinion of the district court in favor of the Railroads but reversed the district court on other issues on which the district court had ruled in favor of the Redevelopment Agency.
From page 475...
... 475 Statutes 7. Kentucky Statute on Contamination Caused by Hazardous Substances Although no cases were located involving railroads and a Kentucky statute on contamination caused by hazardous materials, the statute applies, inter alia, to reportable quantities and to release notification requirements for hazardous substances, pollutants, or contaminants and remedial action to restore the environment, as well as to the liability of a financial institution acquiring property or serving as a fiduciary.2415 8.
From page 476...
... 476 contribution from defendants for their share of the $8.6 million in clean-up costs already incurred by [Reading Co.] , as well as any future costs incurred, in removing polychlorinated biphenyls (PCBs)
From page 477...
... 477 summary judgment was proper "irrespective of the 1995 amendments" to the MTCA secured creditor exceptions, summary judgment was "even more justified under the amended statute."2424 Articles 12. Survey of States with CERCLA-type Laws An article entitled "Natural Resource Damages: Recovery under State Law Compared with Federal Laws" observes that "each state has the right to pass its own laws for recovery of natural resource damages;" that CERCLA "does not preempt any state from imposing additional liability or requirements regarding the release of hazardous substances;" and that "CERCLA … does not affect obligations under state law, including common law, with respect to the release of hazardous substances."2425 The article includes a survey of state "environmental statutes for CERCLA-type laws pertaining to the release of a hazardous substance."2426 13.
From page 478...
... 478 clean up hazardous waste.2428 Within eighteen months, the HWTF and HWS filed fifty-four judicial enforcement actions under the authority of the Resource Construction and Recovery Act (RCRA) .2429 In 1980, Congress enacted CERCLA but the EPA adopted a "non-confrontational approach" to enforcement because the Reagan Administration's position was that the process was too litigious; thus, the PRPs were to be asked to clean up sites voluntarily.2430 After Congress opened investigations in 1982 into EPA's mismanagement and lack of enforcement, the EPA and DOJ bolstered their enforcement efforts.2431 Because the Superfund program lacked funds during President George W
From page 479...
... 479 that because of a stagnant economy and the congressional shift toward deregulation the enforcement of CERCLA has an uncertain future.2434 14. CERCLA in the Ninth Circuit A 2012 law review article reviews some significant cases in the Ninth Circuit on environmental law.2435 Four cases relating to CERCLA are discussed, including Redevelopment Agency of the City of Stockton v.
From page 480...
... 480 negligence, or strict liability."2440 Notwithstanding the differences between CERCLA and state statutory or common law, the writer argues that "all of the various standards can be applied without resulting in multiple recoveries or interfering with CERCLA or state cleanup goals."2441 The article provides an excellent overview of CERCLA, its legislative history, and amendments. The importance of CERCLA cannot be overestimated because the statute is "a vehicle for the federal government, state and local governments, tribes, and private parties to recover costs associated with contamination that occurred in the past, often decades ago, during a time when there were few requirements associated with the disposal of hazardous substances."2442 Furthermore, "[l]
From page 481...
... 481 Klass emphasizes that relief under state law is much broader in some states, such as Alaska, Minnesota, and Washington, which "allow recovery for personal injury, lost profits, diminution in value to property, attorneys' fees, expenses, or other losses stemming from the contamination of property or harm to human health and the environment."2446 The article identifies Minnesota's superfund statute, the Minnesota Environmental Response and Liability Act (MERLA) , as one such example.2447 However, in contrast to CERCLA, MERLA imposes liability on current owners and operators of facilities only if they owned or operated the facility at the time the hazardous substance was placed or came to be located on the facility, when the hazardous substance was located in or on the facility but before the release, or during the time of the release or threatened release.2448 Another Minnesota statute, the Minnesota Environmental Rights Act (MERA)
From page 482...
... 482 As for preemption of state law by CERCLA, "virtually all courts are in agreement that Congress did not intend to preempt the field of hazardous substance remediation and did intend to leave considerable room for state law."2451 Finally, the article includes case studies of claims for contaminated property in Union Pacific Railroad Co.
From page 483...
... 483 the portion of a facility to the extent that activities taking place at such portion are comprised solely of the railroad transportation of solid waste after the solid waste is loaded for shipment on or in a rail car … or a facility where solid waste is solely transferred or transloaded from a tank truck directly to a rail tank car.2456 Furthermore, the CRA authorizes the STB under prescribed circumstances to "issue a land-use exemption for a solid waste rail transfer facility that is or is proposed to be operated by or on behalf of a rail carrier" when, for example, "the Board finds that a State, local, or municipal law, regulation, order, or other requirement affecting the siting of such facility unreasonably burdens the interstate transportation of solid waste by railroad, [or] discriminates against the railroad transportation of solid waste and a solid waste rail transfer facility…."2457 Section 10909(b)
From page 484...
... 484 submit an environmental or historical report forty-five days prior to filing an application.2460 The Office of Environmental Assessment (OEA) is authorized to reject any report that it finds to be inadequate.2461 If the applicant or STB hires a third party consultant, and the OEA approves the consultant's work in preparing an EIS, the normal requirements for environmental reporting are waived.2462 In fact, "[t]
From page 485...
... 485 regulations for the practice of transloading solid waste from a truck to a railroad car and related facilities. The case addresses the requirements for new rail facilities that are constructed to store solid waste so that they will meet environmental standards.
From page 486...
... 486 regulations and remanded the case for further fact-finding and a consideration of each individual regulation.2472 Articles 5. Railroad Deregulation and Waste Transfer Stations and the Presumption against Preemption An article in the Ecology Law Quarterly states that "[u]
From page 487...
... 487 ICCTA preemption in the Second, Ninth, and District of Columbia Circuits and a narrow view of preemption in the Third, Sixth, Eighth, and Eleventh Circuits.2476 Second, the author argues that [a] s a result, in cases involving railroad waste stations, lower courts have found state solid waste laws preempted by ICCTA.
From page 488...
... 488 "that any ‘state or local permitting process for prior approval of [a] project, or of any aspect of it related to interstate transportation by rail, would of necessity impinge upon the federal regulation of interstate commerce and therefore is preempted.'"2481 The article argues that the STB's policy undermines state permit programs and thus opens up regulatory gaps.2482 6.
From page 489...
... 489 railroad projects."2486 However, according to the Report, the 2008 Clean Railroads Act "overturned the Ninth Circuit's broad reading of ICCTA preemption in Auburn…."2487 Nevertheless, "significant uncertainty remains in the absence of future litigation to determine the precise contours of the relationship between the ICCTA and the Clean Railroads Act on this question."2488 The Report points out that under the Clean Railroads Act "‘unreasonably burdensome' state laws remain preempted by the ICCTA."2489 The Report observes that in 2010 in American Railroads v. South Coast Air Quality Management District2490 "the Ninth Circuit struck down a local air pollution law regulating idling locomotives because it applied only to railroads."2491 The Report states that although most rail improvements supporting the expansion of coal exports do not require an STB permit, the STB permitting process for the extension of new lines, where they are needed, provides perhaps the best avenue for influencing coal export plans.
From page 490...
... 490 the grant by the [STB] of a permit triggers environmental analysis under NEPA, providing citizens with the opportunity to engage in the decision making processes regarding rail infrastructure, as well as … [under]
From page 491...
... 491 requirements will apply when a state land management agency grants an easement for a railroad to cross state-owned land.2497 D Transportation of Hazardous Materials Statutes and Regulations 1.
From page 492...
... 492 2. Regulations Implementing the Hazardous Materials Transportation Act The FRA has implemented regulations to ensure the safety of the transportation by rail of hazardous materials.
From page 493...
... 493 the DOT took soil samples from railroad property when exercising its due diligence in respect to environmental requirements that were necessary prior to road construction.2508 The Wisconsin Central Limited (WCL) had agreed to the construction of a new overpass as part of a settlement agreement with the village of North Fond du Lac.
From page 494...
... 494 permit from the District of Columbia Department of Transportation (DCDOT) .2512 The District of Columbia Circuit held that the FRSA preempted the D.C.
From page 495...
... 495 an environmental assessment (EA) ;2518 whether to prepare an EIS;2519 who are cooperating agencies;2520 and applicable time limits.2521 Part 1502 contains the requirements for an EIS, including major federal actions that necessitate the preparation of an EIS;2522 preparation of draft, final, and supplemental statements;2523 purpose and need;2524 and alternatives, including the proposed action.2525 2.
From page 496...
... 496 waterfowl refuges, and historic sites, the Secretary may approve a project requiring the use of public land only if there is no alternative to using the land and there are plans in place to minimize harm to the site and wildlife. If certain criteria are met, the Secretary also is authorized to make a finding that a transportation program or project will have a de minimis impact on historic sites or parks, recreation areas, wildlife, or waterfowl refuges.2528 The DOT Secretary is a member of the Cabinet Committee for the Environment that is tasked with securing the cooperation of federal, state, and local governments and private organizations.2529 3.
From page 497...
... 497 The FRA has developed procedures to comply with and expand on the CEQ's regulations.2532 The FRA's regulations state in part that when an applicant requests "substitute service assistance, rail facility construction assistance, or rehabilitation or improvement assistance" (except for exempt rehabilitation or improvement assistance) , the applicant must prepare an EA.2533 The EA is used to determine whether the future use of the property will significantly affect the quality of the human environment and/or to provide sufficient documentation to enable the Administrator to determine that the project satisfies certain specified criteria.2534 The FRA recommends that prior to submitting an application an applicant seek the Administrator's advice regarding the "form and substance of the assessment for the project under consideration."2535 The FRA will decide whether the proposed action is a major federal action and whether more environmental documents are needed.2536 After evaluating the documents, the FRA will decide whether to issue a Finding of No Significant Impact (FONSI)
From page 498...
... 498 When an EIS is required the FRA's Program Office will commence the preparation of the EIS with the Office of Chief Counsel.2539 The Draft EIS may be released after the Administrator's approval.2540 Once released, the period for public notice and comment is to be at least forty-five days.2541 An EIS becomes final on its approval by the Administrator.2542 5. Surface Transportation Board The STB is responsible for overseeing the construction, acquisition, mergers, or abandonment of railroads, whereas the FRA is responsible for the safety of railroads.
From page 499...
... 499 rules, practices, routes, services, and facilities; and the "construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State…."2545 The STB has promulgated regulations to assure that its decision-making processes comply with NEPA.2546 The regulations provide in part that [t] he Chief of the Section of Environmental Analysis is responsible for the preparation of documents under these rules and is delegated the authority to provide interpretations of the Board's NEPA process, to render initial decisions on requests for waiver or modification of any of these rules for individual proceedings, and to recommend rejection of environmental reports not in compliance with these rules."2547 In the absence of the STB's approval, railroad companies may not proceed with certain proposed activities such as construction or mergers with other companies.2548 Section 11324(c)
From page 500...
... 500 entities;"2551 and encourage railroads to make private agreements with local communities to address specific local concerns.2552 The Board emphasizes public participation "to ensure a fully developed record on the effects of a proposed railroad consolidation."2553 The Board is required to consider the public's comments in its decision-making process.2554 The STB may require that an applicant comply with certain conditions, including environmental ones, that the STB finds are necessary and in the public interest.2555 6. Railroads, Environmental Documents, and Findings a.
From page 501...
... 501 The ER must describe the proposed action and any reasonable alternatives; describe the effects of the proposed action on regional or local transportation systems and patterns; estimate the amount of traffic that will be diverted; provide details on land and whether the proposed action is consistent with existing land use plans; describe the effect of the proposed action on the transportation of energy resources and whether (and why) the proposed action will result in an increase or decrease in overall energy efficiency; and provide details on any hazardous materials that are expected to be transported.2557 Additional information is required for proposed rail construction.2558 b.
From page 502...
... 502 With some exceptions, an EA normally is prepared for any of the following as well as other proposed actions specified in the regulations: construction of connecting track within existing rail rights-of-way or on land owned by the connecting railroads; abandonment, with one exception noted, of a rail line; discontinuance, with some exceptions noted, of passenger train service or freight service; an acquisition, lease, or operation under 49 U.S.C. §§ 10901 or 10910, or consolidation, merger, or acquisition of control under 49 U.S.C.
From page 503...
... 503 assessments for the reasons stated in [40 C.F.R.
From page 504...
... 504 determined in accordance with section 10(e) of these Procedures."2572 Furthermore, "[n]
From page 505...
... 505 intent to prepare an EIS … and a request for written comments on the scope of the EIS."2577 Part of the scoping process for an EIS may include meetings open to the public and other interested parties.2578 Once the draft EIS is available, it generally will be made available for forty-five days for written comments.2579 If there is to be an oral hearing concerning the merits of a proposal, an EIS generally will be made public fifteen days prior to the hearing.2580 Cases 6. Judicial Review of Petitions Challenging an STB Decision In Alaska Survival v.
From page 506...
... 506 consider.2583 In Alaska Survival the petitioners alleged that the expansion would damage wetlands and habitats for "wolves, bear, foxes, salmon, and other wildlife."2584 The STB granted the exemption after it determined there was sufficient public need and procedures to mitigate environmental impacts.2585 The court ruled that the STB considered sufficient alternatives to satisfy the public and private objectives for the project and to make an informed decision on whether to grant an exemption.2586 An EIS does not need "to consider an infinite range of alternatives, only reasonable or feasible ones…. But failure to examine a reasonable alternative renders an EIS inadequate."2587 The court held that the STB's measures and procedures were sufficient under the ICCTA.
From page 507...
... 507 7. Reasonable Basis for a Finding of no Significant Impact In Township of Belleville v.
From page 508...
... 508 classified the project as a Class III project, one for which "the significance of the environmental impact is not clearly established," and required an EA to determine which environmental document was required.2596 Second, the plaintiff argued that because the project presented "a substantial possibility of significant impacts" the "FTA acted unreasonably in issuing a FONSI for the project based on the EA[] without requiring an EIS."2597 The court held, however, that "the EA submitted to the FTA provides a detailed analysis of the traffic impacts of the project" and that "the EA's conclusion that the project will not cause significant environmental impacts in terms of traffic" was reasonable.2598 The court made identical findings concerning other impacts of the project, including any impact on pedestrian safety.2599 The court held that the FTA acted reasonably in issuing a FONSI and granted the defendants' motions for a summary judgment.
From page 509...
... 509 necessity grounds. The petitioners argued that the STB's approval was in error because outdated information had been used in completing the EIS.2601 Judicial review of the Board's decision under NEPA is limited to whether the agency took a "hard look" based on a strict interpretation of NEPA's requirements.2602 To satisfy NEPA an EIS must consider the cumulative environmental impacts that a proposed action may have.2603 The court held that the Board did not satisfy NEPA's requirements in its preparation of the EIS, in part because of the use of outdated aerial survey photographs.
From page 510...
... 510 9. The STB's Authority to Impose Environmental Conditions on Minor Mergers Village of Barrington v.
From page 511...
... 511 with voluntary mitigation commitments negotiated with several affected communities."2613 After the acquisition was complete, Canadian National filed a petition for review that challenged "Condition 14" for being both "unlawful and arbitrary and capricious."2614 Numerous local governmental entities, including the Village of Barrington, also filed petitions for review that challenged the Board's compliance with NEPA.2615 The District of Columbia Circuit considered whether the Staggers Rail Act deprived the STB of authority to impose environmental conditions on minor mergers. Congress enacted the Staggers Rail Act to deregulate railroads and in part to "expedite approval of smaller mergers."2616 The court held that "nothing in [49 U.S.C.
From page 512...
... 512 mitigating those impacts, and fielded and responded to thousands of comments from local, state, and federal agencies and from the community.2619 Thus, the court denied the petitions for review because the Staggers Rail Act did not foreclose the STB from imposing environmental conditions on minor mergers and because the court "found no ‘error[s] [that]
From page 513...
... 513 STB's decision that allowed a railroad to construct and operate a rail line to service a quarry. The petitioner argued that the STB and the United States Fish and Wildlife Service (FWS)
From page 514...
... 514 with the FWS combined with the EIS was sufficient to satisfy procedural requirements.2627 The court denied MCEAA's petition for review.
From page 515...
... 515 would have on native artifacts.2631 The city, on the other hand, argued that the EIS satisfied the city's obligations. The Supreme Court of Hawaii agreed with the city in holding that the EIS only needed to comply "in good faith" with the regulatory requirements, a test that the EIS satisfied, first, because it considered alternatives and the impacts on water, air, wildlife, as well as other impacts, and, second, because it proposed mitigation measures.2632 The court further held that the EIS only needed in good faith to include documentation and recommendations for the mitigation of impacts on archeological artifacts.2633 The court stated: [C]
From page 516...
... 516 The Supreme Court of Hawaii partially affirmed a summary judgment because "the final EIS was sufficient under HRS chapter 343" and because the city and state "gave full consideration to cultural and historic values as required under HRS chapter 205A."2636 13. Environmental Impact Statement Required to Consider Socioeconomic Impacts on the Local Population In Saint Paul Branch of the National Association for the Advancement of Colored People v.
From page 517...
... 517 the light rail construction.2641 Thus, the district court granted a summary judgment in part, denied it in part, and also denied the plaintiffs' request to enjoin the project.2642 14. STB's Adequate Consideration of Alternatives and of Horn Noise The Eighth Circuit in Mayo Foundation v.
From page 518...
... 518 Article 15. NEPA and the Role of Public Comments A recent law review article discusses how the inclusion of public comments has influenced decisions by the courts on the issue of compliance with NEPA.2646 The article is an update of a 1990 study that considered NEPA cases "in which the courts relied on agency comments to arrive at conclusions about NEPA compliance."2647 The authors state that "[t]
From page 519...
... 519 interagency comments supporting the lead agency's analysis;"2652 and examines cases in which "courts made NEPA determinations that were inconsistent with agency comments – a practice that seems to contradict our thesis."2653 Nevertheless, the authors suggest that public comments also are a vital part of the NEPA process. Article F
From page 520...
... 520 that the ICCTA preempted the rules.2658 The Ninth Circuit explained that "[b] ecause the District's rules have the force of state law [the]
From page 522...
... 522 Finally, sections H through M discuss articles on causation and FELA, the effect of counterclaims by railroads in FELA cases, recovery under FELA for a fear of developing cancer because of job-related exposure to toxins, and whether FELA should be repealed.
From page 523...
... 523 or possession also may be held liable under FELA for an injury to or the death of an employee.2669 An employee's contributory negligence will not bar the employee or his or her personal representative or next of kin from recovering damages, but the employee's contributory negligence will reduce the amount of damages awarded.2670 Even if an employee is found to have committed negligence that contributed to his or her injury, the employee is not automatically barred from recovering damages.2671 Rather, a jury may reduce damages that otherwise would be recoverable based on the jury's assessment of the extent of the employee's negligence. Furthermore, an employee should not be found to have been contributorily negligent when the employee's injury is the result of the employer having failed to adhere to "any statute enacted for the safety of employees [that]
From page 524...
... 524 creates a cause of action under federal law that permits railroad employees to bring claims against their employers for negligence rather than the employees having to rely on state law.2675 A railroad company may not "contract out" of its liability2676 or use "assumption of the risk" as a defense to liability.2677 Finally, a railroad company may not in any way prevent employees from supplying information to persons of interest regarding a FELA claim.2678 Cases 1. Determining Who is an Employee In Kelley v.
From page 525...
... 525 Under common-law principles, there are basically three methods by which a plaintiff can establish his "employment" with a rail carrier for FELA purposes even while he is nominally employed by another. First, the employee could be serving as the borrowed servant of the railroad at the time of his injury.
From page 526...
... 526 suffered a nervous breakdown after being assigned additional responsibilities and being forced to work extended hours. Both Gottshall and Carlisle asserted claims of negligent infliction of emotional distress, but neither employee had been physically injured while on the job.2689 Although FELA is to be construed liberally in furtherance of Congress's remedial purpose to shift liability to an employer, the Court held that FELA is not a worker's compensation statute.2690 That is, "FELA does not make the employer the insurer of the safety of his employees while they are on duty.
From page 527...
... 527 Lewy was malingering, the company ordered Lewy to be examined by a company physician.2696 Because Lewy refused to meet with the physician, he was discharged in 1980 but was allowed to return to work for Southern Pacific in September 1982 after receiving his physician's approval.2697 Lewy asserted claims for aggravation and wrongful discharge under FELA.2698 The Ninth Circuit explained that the original purpose of FELA was to "enable injured railroad workers to overcome a number of traditional defenses to tort liability that had previously operated to bar their actions, including contributory negligence, contractual waiver of liability, the fellow-servant rule, and assumption of the risk."2699 The court noted that FELA covers "negligent acts that expose employees to occupational diseases;" accidents caused by "external violent or accidental means;" and "wholly mental injuries."2700 In spite of its broad coverage, the Ninth Circuit held that FELA only covers work-related or "on the job" injuries.2701 FELA does not apply to claims of wrongful discharge, because wrongful discharge is not considered an on the job injury caused by the employer's negligence.2702 2696 Id.
From page 528...
... 528 4. Inapplicability of FELA to Purely Intrastate Activities In Felton v.
From page 529...
... 529 Cases C Whether other Federal Laws may Preclude a Claim under FELA 1.
From page 530...
... 530 FRSA interacted with federal negligence claims under the FELA, and the Supreme Court has yet to address the issue. Three other circuits, however, have used Easterwood as a guide in holding that FRSA regulations preclude federal tort claims under the FELA."2717 Although the district court raised the above issue sua sponte,2718 even if the Eighth Circuit were to presume that the FSRA precluded the claim, the district court in this case failed to consider "whether an FRSA regulation ‘substantially subsumes' the negligence claim."2719 Because the district court failed to make the "substantially subsumes" analysis and because of the insufficiency of the record below, the Eighth Circuit reversed and remanded the district court's grant of a summary judgment for BNSF.2720 2.
From page 531...
... 531 Cases D Principles that Generally Apply in FELA Cases 1.
From page 532...
... 532 held that Geraty's duties were in furtherance of interstate commerce and therefore denied Metra's motion for a summary judgment.2729 2. Permissibility of Counterclaims by Railroads in FELA Claims In Cavanaugh v.
From page 533...
... 533 had to prove proximate cause, the Court held that juries should be instructed to find liability whenever a "railroad's negligence played any part in bringing about the injury."2734 According to the Court, its decision was based on the intent of Congress when enacting FELA. The Court explained that liability under FELA is limited to railroads and to their employees only for injuries sustained in the course of employment and that an injury must have resulted "in whole or in part from the negligence" of the carrier.2735 CSX's position was that causation under FELA requires a direct relationship between an asserted injury and allegedly injurious conduct or negligence.2736 However, the Court held that the language in and purpose of FELA demonstrates that the statute does not incorporate proximate cause as traditionally exists in tort actions.2737 Thus, because it was not error to refuse to use "proximate cause terminology" in FELA actions, the court affirmed the Seventh Circuit's decision.2738 4.
From page 534...
... 534 facts to support the conclusion reached by the jury."2740 5. The Use of Comparative Negligence rather than Contributory Negligence in FELA Cases Some states follow a contributory negligence rule whereby any negligence on the part of a plaintiff is a complete bar to recovery; however, the doctrines of contributory negligence and assumption of the risk do not apply to cases brought under FELA.2741 Section 53 of FELA effectively provides that the principles of comparative negligence apply when it is alleged that a plaintiff was contributorily negligent.2742 In contrast to a contributory negligence rule, in a FELA case an employee's negligence will not bar a recovery completely.
From page 535...
... 535 follow the common law because "‘[a] bsent express [statutory]
From page 536...
... 536 empowered to maintain a police force, the LIRR ceased having its own police force. Many LIRR police officers, as did the plaintiff, became employed by the MTA.2751 The MTA claimed that it was "not a proper defendant under FELA" because the MTA was "not a common carrier within the meaning of the statute."2752 The LIRR argued that although it is a common carrier the LIRR was not liable because Greene was no longer its employee at the time of the accident.2753 A federal district court in New York denied the defendants' motion for summary judgment.
From page 537...
... 537 no less employed by a common carrier today than when he performed the same duties when employed by the LIRR."2757 MTA employees engaged only in intrastate rail operations are covered by workers' compensation law, not FELA.2758 As the court cautioned, the court's holding is limited to those employees of MTA who are engaged in the interstate common carrier operations of its commuter rails. Specifically, the holding that MTA operates a common carrier does not lead to the conclusion that all MTA employees, including those employed strictly in the MTA's intrastate operations (such as employees of the New York City Transit Authority)
From page 538...
... 538 Plan paid the majority of Leighton's medical expenses on behalf of CSX.2763 The Kentucky Court of Appeals relied on decisions of other courts that had ruled that payments by an insurance plan on behalf of a railroad were not a collateral source.2764 The court held that because the payments by the health insurance plan were not a collateral source, the employee's recovery must be limited to out-of-pocket expenses.2765 Cases E Whether a Claim of Infliction of Emotional Distress may be made under FELA 1.
From page 539...
... 539 The Second Circuit considered whether the zone of danger test applied to such claims for emotional distress under FELA. LIRR argued that the company could not be held liable for negligent or intentional infliction of emotional distress unless a plaintiff satisfies the zone of danger test.
From page 540...
... 540 FELA. However, the court held that Goodrich did not have a claim under FELA because Goodrich failed to allege that because of LIRR's actions he had sustained a "physical impact" or was placed in "immediate risk of physical harm."2774 2.
From page 541...
... 541 decision in Norfolk & Western Ry.
From page 542...
... 542 responsible for the entire amount even if another party also negligently caused the injury) .2786 On the first issue, the Court held that employees could recover for mental anguish when they are able to prove that their fear is a genuine and serious one.2787 On the second issue, the Court held that a railroad is responsible for the entire amount of compensation that is awarded in spite of the possibility that another party's negligence may have caused the injury as well.2788 3.
From page 543...
... 543 three years before suit was commenced."2792 However, the court granted the railroad's motion concerning "one plaintiff [who] knew seven years before he filed his FELA claim that his pulmonary testing revealed serious lung damage, that railroad workers were suffering respiratory and pulmonary problems from lung contamination, and that his coughing and breathing difficulties were attributable to occupational coal dust exposure."2793 Cases G
From page 544...
... 544 2. Liability of a Railroad under FELA based on a Violation of the FSAA In Strickland v.
From page 545...
... 545 summary judgment to Norfolk Southern.2805 Articles H What a Plaintiff must Prove Regarding Causation under FELA A recent law review article analyses the Supreme Court's decision in 1957 in Rogers v.
From page 546...
... 546 ground of the insufficiency of the plaintiff's evidence.2811 The article attempts to explain the Rogers case on the basis that the decision was about "factual causation."2812 The author argues that post-Rogers the courts endorse[d] the Rogers language for use in jury instructions and duck[ed]
From page 547...
... 547 plaintiff has the burden of proof to establish that the defendant's negligence was a necessary condition/but for/without which/sine qua non (take your pick) of the plaintiff's harm;" decide[d]
From page 548...
... 548 the element of proximate cause.2823 The author submits that the decision "will not work out to be as great as it looks on paper," because the courts commonly use reasoning that is based on proximate cause, even when declaring there is no proximate cause requirement.2824 J The Effect of Counterclaims by Railroads on FELA Claims In "Sidetracking the FELA: The Railroads' Property Damage Claims" the author argues that FELA's value is compromised by the increased instances in employees' suits under FELA when railroads counterclaim for property damage.2825 The author argues that the potential for counterclaims by railroads deters employees and their families from filing claims under FELA.2826 K
From page 549...
... 549 FELA case who was diagnosed with asbestosis but not with cancer could recover damages based on a fear of developing cancer even without symptoms of emotional distress. The Court held that such a claim is actionable as long as the one suffering from asbestosis seeks damages for fear of developing cancer as an element of the damages for asbestosis-related pain and suffering.2829 After the decision in Ayers, other courts held that even a plaintiff who is not exhibiting any sign of physical symptoms stemming from emotional distress may bring a claim for emotional distress that is related to asbestosis and the fear of having cancer eventually.2830 The article discusses how CSX Transportation v.
From page 550...
... 550 plaintiff's burden of proof for claims under FELA.2832 The authors note that in eighty-four percent of FELA cases in which the Supreme Court has granted certiorari "the Court reversed the lower court for setting aside a jury verdict for the employee or taking the case from the jury."2833 The authors argue that the costs of FELA claims are very high, not only because damages may include lost wages, medical expenses, estimated future earnings, and pain and suffering, but also because the low requirement for proof of negligence all but ensures that counsel will be involved, thus increasing the transaction costs of FELA claims.2834 M Whether FELA should be Repealed In "Why Congress Should Repeal the Federal Employers' Liability Act of 1908" the author argues that FELA should be repealed or clarified.2835 The author argues that FELA is outdated, overburdens the federal courts, and should be replaced by state workers' compensation funds.2836 2832 Arnold I
From page 552...
... 552 Program (§ 1113) ;2841 and the Transportation Alternatives Program (§ 1122)
From page 553...
... 553 or regional significance."2847 TIFIA provides federal credit assistance for eligible surface transportation projects and is designed to allow state and local governments to finance largescale projects.2848 Loans are available for surface transportation projects such as highway, railroad, intermodal freight, and transit projects; moreover, port-access projects may apply for financial assistance that may be combined with private funding.2849 The source of TIFIA funding is the Highway Trust Fund.2850 A project eligible for TIFIA may secure a line of credit, a loan, or both. A TIFIA line of credit may be secured for an amount up to 33% of the cost of a project, whereas a TIFIA loan may be made for up to 49% of a project's cost.2851 2.
From page 554...
... 554 projects costing more than $50 million; rural infrastructure projects costing at least $25 million; an "intelligent transportation system" costing at least $15 million; or a project that costs up to one-third of a state's formula apportionment in a given year.2853 D Railroad Rehabilitation and Improvement Financing Program Statutes and Regulations 1.
From page 555...
... 555 The foregoing authority has been delegated to the Administrator of the Federal Railroad Administration.2855 When applications are being evaluated, priority is given to projects, for example, that will enhance public safety or the environment, promote economic development, preserve or enhance rail or intermodal service to small communities or rural areas, or enhance service and capacity in the national rail system.2856 The statute and regulations establish certain limitations, conditions prerequisites, and requirements. For example, under § 822(d)
From page 556...
... 556 that "the direct loan or loan guarantee is justified by the present and probable future demand for rail services or intermodal facilities…."2859 One of the requirements for assistance is that the Secretary must determine the amount of a credit risk premium that must be paid before the disbursement of any loan.2860 The factors that the Secretary must consider are identified in 45 U.S.C.
From page 557...
... 557 Federal infrastructure partner may pay to the Administrator a Credit Risk Premium adequate to cover that portion of the subsidy cost not covered by Federal appropriations."2864 Of course, if direct loans or loan guarantees under RRIF do not cover the complete cost of a project, other financing or investment may be needed for a project.
From page 558...
... 558 equipment.2868 Although the funding program reportedly has up to $35 billion for use only about $1.7 billion has been spent since 1998; seventy-two percent of the loans have been provided to Class II and III railroads.2869 The article argues that "[d] emand for public transportation is real and growing, but oddly, commuter rail demand lags other modes" and that "greater frequency and interconnectivity will increase ridership, meeting an untapped demand of currently underserved riders."2870 The article states that providing RRIF funding for commuter rail may be accomplished by following the TIFIA-model for highways whereby RRIF could be a source of "low-cost debt capital for commuter rail[]
From page 559...
... 559 Statutes E Railway-Highway Crossings Program 1.
From page 560...
... 560 crossing within a state's borders, such as warning devices and signage.2879 All previous projects that were eligible under 23 U.S.C. § 130 continue to be eligible.2880 Statutes F
From page 561...
... 561 2. Project Eligibility ARRA funding may be made available to current recipients of FTA's Urbanized Area Formula Program (49 U.S.C.
From page 563...
... 563 However, when "necessary to eliminate or reduce an essentially local safety or security hazard" a state may adopt an "additional or more stringent law, regulation or order."2890 The local hazards savings clause is an exception to preemption under the FRSA for "specific local hazards … that the Secretary of Transportation did not and, as a practical matter, could not take into account in determining laws or regulations under the FRSA."2891 1. Amendments to 49 U.S.C.
From page 564...
... 564 (2) to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security; (3)
From page 565...
... 565 equipment, track, or structures, when the employee believes that the equipment, track, or structures are in a hazardous safety or security condition, if the conditions described in paragraph (2) exist.2895 3.
From page 566...
... 566 action in a United States District Court.2898 The remedies available to a prevailing complainant include "all relief necessary to make the employee whole" including reinstatement, backpay, with interest and compensatory damages.2899 In certain cases, punitive damages up to $250,000 may be awarded.2900 The provisions on whistleblower protection also allow other federal or state laws to provide safeguards against discrimination in railroad employment.2901 The intent is to provide "broad scale federal legislation" without "disturb[ing] these existing railroad safety laws."2902 4.
From page 567...
... 567 the Report) to enforce an action for retaliatory discipline against a railroad carrier.2904 OSHA has promulgated regulations to handle complaints of retaliation under the FRSA.2905 5.
From page 568...
... 568 engineer who was operating the train at the time of the accident.2909 The complaint alleged that Amtrak, the MBTA, and Prone were negligent; that there were statutory violations because of Amtrak's and the MBTA's failure to give adequate warnings; and that Amtrak and the MBTA were guilty of gross negligence and willful, wanton, or reckless conduct.2910 After the Superior Court dismissed the complaint, the Appeals Court of Massachusetts affirmed.2911 The appeals court held that dismissal below was proper, in part, because "local speed limit and safety gate requirements were preempted by the [FRSA]
From page 569...
... 569 regulations of the carrier" ... However, even where a decedent is a trespasser, a railroad can be held liable for damages if the conduct of its agents that caused such death was wilful, wanton, or reckless.2915 After reviewing the evidence, the Supreme Judicial Court concluded that Boyd had presented sufficient evidence to raise a triable issue of fact on whether the defendants were reckless.2916 First, "[b]
From page 570...
... 570 D Under the FRSA only Federal Regulations and Orders of the Secretary of Transportation Establish a Federal Standard of Care that Preempts State Law In Sanchez v.
From page 571...
... 571 engineering standards for ballast promulgated by the American Railway Engineering and Maintenance of Way Association" (AREMA) .2924 However, the court rejected the argument because "[a]
From page 572...
... 572 provision,2929 but also the legislative history demonstrated a clear congressional intent to provide uniform protection to all railroad employees who report safety violations.2930 The court's opinion further explained: Congress presumably believed that this statutory "whistleblower" provision was a law "relating to railroad safety" when it included it in the Federal Railroad Safety Authorization Act of 1980 and codified it in the United States Code under the title of "Railroad Safety." …. The comprehensive remedial scheme for aggrieved railroad employees provided in § 441 serves to confirm its preemptive scope.
From page 573...
... 573 Article F The FRSA's Continued Preemption of State Laws since the 2007 Amendment An article published in the Transportation Law Journal examines the state of federal preemption under the FRSA after the 2007 amendment.2935 In two Supreme Court cases decided before the amendment, the Court held that the FRSA preempted state "common law tort duties."2936 The two decisions prompted concern that the FRSA did not provide a cause of action for a party injured by a railroad's alleged tortious acts, and, therefore, in some cases the FRSA had produced harsh results.2937 In enacting the 2007 amendment, Congress clarified the FRSA by listing exceptions to the general rule of preemption.2938 The article states that the "[c]
From page 574...
... 574 longer applies,2940 "the statute will continue to assure that federal regulations regarding particular areas of railroad safety will supersede state laws covering the same subject."2941 2940 Id.
From page 576...
... 576 Statutes and Regulations B Regulation of Railroad Equipment Safety 1.
From page 577...
... 577 switching steps must have vertical handrails on each side of the steps.2951 Moreover, locomotives built after 1975 may not have end footboards or pilot steps.2952 The FSAA allows defective vehicles to be moved from one track to another without incurring a civil penalty.2953 However, a railroad company does not escape liability for death or injury of a railroad employee as the result of moving a defective vehicle.2954 3. No Assumption of Risk by Railroad Employees An employee of a railroad carrier does not assume the risk of injury resulting from the use of a train that is in violation of the FSAA.2955 Even if an employee "continues to be employed by the carrier after learning of [a]
From page 578...
... 578 railroad; any manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; [and] any employee of such owner, manufacturer, lessor, lessee or independent contractor."2959 The federal regulations also provide a number to call when an accident occurs.2960 Accidents are investigated by the Federal Railroad Administration (FRA)
From page 579...
... 579 treated at a hospital.2966 An inspection revealed that the brake was defective.2967 Deans sued CSX under the FSAA, claiming that CSX was liable for his injuries.2968 Finding that the railcar was not in use for purposes of the FSAA, the district court granted the railroad company's motion for a summary judgment.2969 However, the Fourth Circuit reversed the judgment of the district court on Deans' FSAA claim and remanded.2970 The FSAA "imposes absolute liability on railroad carriers" for violations of the law if a train is "in use" at the time of an accident.2971 The FSAA provides that a railroad company shall not use a vehicle on its line if it lacks efficient hand brakes.2972 The court, therefore, had to determine whether the train was in use within the meaning of the FSAA in deciding whether CSX was liable for injuries caused by deficient hand brakes. The Fifth Circuit had held that a train was not in use when an employee was injured while checking a train's brakes prior to the conductor taking control.2973 On the other hand, the Fourth Circuit had held that a train was in use when the engine had been inspected and the train declared ready for use.2974 2966 Id.
From page 580...
... 580 In Deans, the Fourth Circuit held that the primary factors in determining whether a train was in use at the time of an accident are the location of the train and the activity of the injured party.2975 In Deans, the train was ready for departure and the conductor was attempting to put the train in motion.2976 Thus, the court held that the train was in use at the time of the accident and reversed the district court's grant of a summary judgment for CSX.2977 2. When a Violation of the FSAA is Negligence Per Se for the Purpose of a FELA Claim In Marshall v.
From page 581...
... 581 FELA.2982 The FSAA does not provide a right of action by itself but does provide a basis for an injured employee's claims under FELA.2983 Therefore, the FSAA and FELA are to be applied together.2984 Furthermore, the court held that to prove an FSAA violation Marshall did not have to show that Grand Trunk had prior notice of the defect.2985 One of Marshall's claims arose because he had walked on steep ground to repair a brake system. Marshall argued that but for the malfunction of the brake system he would not have walked on steep ground for the long distance that caused his injury.2986 However, the court held that the defect in the train's brake system did not cause his injury.2987 Although Marshall's motion for a summary judgment was denied, the claim was preserved for trial.2988 As for the two separate incidents when a sill step collapsed under Marshall, the court held that Grand Trunk was negligent per se for failing to maintain the steps and granted Marshall a summary judgment on the claims.2989 As for Marshall's claim based on slipping on ice, although the court granted Marshall's motion for a summary judgment on the ground that the railroad was negligent per se, 2982 Id.
From page 582...
... 582 the jury or trial judge would have to determine the nature and extent of his injuries and the appropriate amount of damages.2990 3. Requirement that Efficient Handbrakes Work Properly Every Time they are Used In Schroeder v.
From page 583...
... 583 4. Whether a Device comes within the FSAA is a Question of Law In Johnson v.
From page 584...
... 584 sufficient to support the court's holding, including his evidence that the support system must be secured properly to avoid interference with the brake system.3007 Because a support strap is a safety appliance under the FSAA, if a strap is found to be defective, the railroad is strictly liable for the defective condition.3008 The court denied the railroad's motion for a summary judgment.3009 5. When a Violation of the FSAA is Negligence for the Purpose of an Indemnity Claim In Burlington Northern R.R.
From page 585...
... 585 $400,000 and then sought $200,000 from Farmers Union and Rolla Grain.3014 The case centered on whether the facts of the incident triggered an indemnity clause in the track lease agreement between Burlington Northern and Farmers Union.3015 To determine whether an act or omission by Farmers Union had occurred for purposes of the indemnity provision, the court first analyzed the duties of Burlington Northern and Farmers Union under the FSAA.3016 Burlington Northern had a duty to secure safe and functional brakes on its railroad cars as required by the FSAA, and if Burlington Northern failed to maintain safe brakes the company had violated FELA.3017 Farmers Union had a duty to assist Burlington Northern in maintaining effective brakes, a duty that Farmers Union breached when it failed to notify Burlington Northern of the defective brake.3018 The court held that an act or omission had occurred under FELA.3019 Although Farmers Union argued that Burlington Northern's violation of the FSAA determined Burlington Northern's negligence, the court rejected the argument.3020 The court relied on another precedent from the Eighth Circuit, Colorado Milling & Elevator Co.
From page 586...
... 586 Terminal R
From page 587...
... 587 D Rules Published by the American Association of Railroads Also relevant to the regulation of railroad equipment safety are rules published by the American Association of Railroads (AAR)
From page 589...
... 589 technologies for high-speed rail.3036 The Secretary has a statutory obligation to "submit to Congress a study of the commercial feasibility" of high-speed ground transportation systems and to establish the necessary national policy.3037 C Funding by the American Recovery and Reinvestment Act In 2009, Congress enacted the American Recovery and Reinvestment Act or ARRA.
From page 590...
... 590 Articles D Continued Growth of High-Speed Rail A law review article argues that "high-speed rail transit would serve as a meaningful form of alternative transportation."3041 The article contends that the "political will and growing public-private partnerships" could overcome the "challenges in adopting high-speed trains within existing transportation schemes."3042 Although the construction, maintenance, and operation of high-speed rail transit involve enormous costs, high-speed rail would "create[]
From page 591...
... 591 system.3045 The article states that the $8 billion grant authorized by the ARRA "when projected over an equal period of time" is nearly identical to the three percent of federal funding historically provided for traditional passenger rail over the last fifty years, a percentage that is insufficient to stimulate the development of high-speed rail.3046 The author proposes the establishment of "a federal high speed rail administration to provide a continual stream of financing."3047 3045 Id.
From page 593...
... 593 Statutes B Mandatory Insurance for the Feeder Railroad Development Program The Feeder Railroad Development Program includes a statutory mandate that private railroads must carry insurance.3050 The program permits the Surface Transportation Board (STB)
From page 594...
... 594 contractors and railroads.3055 The regulations also provide that contractors must purchase protective insurance for railroads when the work involves eliminating railroad-highway crossing hazards or takes place partially or completely in a railroad's right-of-way.3056 The insurance is "limited to damage suffered by the railroad on account of occurrences arising out of the work of the contractor on or about the railroad right-of-way, independent of the railroad's general supervision or control, except [for the negligence of certain railroad employees]
From page 595...
... 595 negligence by a freight railroad or Amtrak. As long as there is the possibility that state laws governing indemnification contracts may make these contracts unenforceable, Amtrak and a freight railroad may find themselves litigating with each other.
From page 596...
... 596 applied Illinois state law to determine whether in a FELA case IHB could seek contribution from a third party.3067 The court cited a previous Illinois case that held that [w] hen parties to a business transaction mutually agree that insurance will be provided as part of the bargain then that agreement must be interpreted as providing mutual exculpation to the bargaining parties.
From page 597...
... 597 an Illinois state court.3072 The complaint in the declaratory judgment action stated that the plaintiff Central Mutual was defending CFCL in the state court action. The complaint in the declaratory judgment action concerned the plaintiffs' claim that the Steadfast policy covers CFCL for the loss that is alleged to have occurred in the state court action, a claim that arose out of a welder's injuries sustained on a CFCL railcar that resulted in the welder's death two days after the incident.3073 Steadfast contends that the state court lawsuit does not come within the terms of the policy it issued to CFCL and that Steadfast does not have an obligation to defend CFCL.
From page 598...
... 598 coverage for property damage and personal injury and covered Trona up to $2 million for each instance of bodily harm coming within the policy.3077 The issue concerned each policy's "other insurance" clauses. Federal's policy stated that if Trona had another insurance policy that also covered a claim coming within Trona's policy, Federal's policy was excess insurance.
From page 599...
... 599 policy" to escape its obligations to provide primary insurance coverage.3083 Thus, the court held that Federal could seek equitable contribution, rather than equitable subrogation, from Liberty because both policies provided primary insurance coverage.3084 G Indemnification Agreements 1.
From page 600...
... 600 under the contract.3089 The court stated that "[o] n its face … § 28103(b)
From page 601...
... 601 § 28103(b) preempted the Connecticut law because the Connecticut law would prevent Amtrak from entering into indemnification agreements protecting the railroad from liability for any claim arising from the construction project, which § 28103(b)
From page 602...
... 602 subcontractors."3102 Although the claim related to property damage instead of bodily injury, the provision that indemnified Amtrak "against any and all claims and liability" related to the contractual work and did not mention negligence.3103 After Amtrak argued that § 28103(b) should not prevent Amtrak from enforcing its indemnity agreement, the court distinguished the separate issues of being able to enter into an indemnification agreement and of interpreting the terms of an indemnification agreement.
From page 603...
... 603 SEPTA moved for summary judgment on the basis of sovereign immunity on the co-defendants' cross-claims against SEPTA. The co-defendants argued that SEPTA waived its immunity when it agreed to indemnify Amtrak "from any and all liability arising from or in connection with the use or occupation of the 30th Street Station as part of the lease agreement…."3107 A federal district court in Pennsylvania granted SEPTA's motion because a claim against a Commonwealth party is actionable only if the basis for the alleged governmental culpability falls within one of nine exceptions to immunity enumerated in the Sovereign Immunity Act (the ‘Act')
From page 604...
... 604 forbidden to do directly, and may not waive its immunity by ‘any procedural devise,' to include contract, and expose itself to liability foreclosed by the legislature."3112 Thus, SEPTA had not waived its immunity and could not be made a party to the negligence actions.3113 H Arbitration of Disputes arising under Indemnification Agreements 1.
From page 605...
... 605 extend the clause to cover "conduct more culpable than ordinary negligence and … punitive damages."3117 Conrail brought an action in a federal district court in the District of Columbia to compel Amtrak to arbitrate based on the arbitration clause. The district court held that "public policy will not allow enforcement of indemnification provisions that appear to cover such extreme misconduct because serious and significant disincentives to railroad safety would ensue."3118 In reversing the district court, the District of Columbia Circuit stated that "there is no question that the parties agreed to arbitrate this dispute."3119 Furthermore, the court held that the district court "erred in treating the arbitration clause as unenforceable merely because the substantive contract provision in dispute between the parties may -- if the district court is correct about public policy -- be unenforceable."3120 The appeals court further stated: For a court to intervene before the arbitrator has determined what the contract means, and what it requires in the particular circumstances of their dispute, because he may determine that it requires the performance of an unlawful act, prematurely disrupts the system of private ordering upon which "public policy" -- as declared in the Arbitration Act and in the Supreme Court cases liberally interpreting it -- places maximum possible reliance.3121 3117 Id.
From page 606...
... 606 Thus, the district court could not "bypass the arbitration process simply because a public policy issue might arise."3122 In vacating the declaratory judgment below, the appeals court reversed the district court's order denying Conrail's motion to compel arbitration.3123 2. Arbitral Decision Enforcing Indemnity Agreement notwithstanding Other Party's Gross Negligence that Resulted in Liability Claims Maryland Transit Administration v.
From page 607...
... 607 A majority of the panel in the first arbitration, not discussed herein, determined that the Amtrak locomotive engineer's gross negligence caused the accident.3129 In the second arbitration, Amtrak asserted that because of § 10 of the Agreement the MTA was required to provide insurance coverage to Amtrak for the June 2002 accident, notwithstanding the first arbitral panel's determination that the cause of the accident was the Amtrak locomotive engineer's gross negligence. However, a majority of the panel in the second arbitration agreed with Amtrak, holding that by reason of the Agreement the "MTA had contractually bound itself to procure liability insurance to protect both itself and Amtrak from losses arising out of accidents of the type involved here."3130 The district court held that even if the arbitrators had erred in their decision they had "committed, at most, mere errors of law" that did not justify a vacatur of the arbitral award.3131 Articles I
From page 608...
... 608 on most of the liability and risk for commuter operations.3133 The report suggests options to facilitate negotiations between freight railroads and commuter rail agencies, such as giving commuter rail agencies more leverage by "providing commuter rail agencies with statutory access to freight-owned infrastructure"3134 and physically separating passenger rail from freight rail.3135 J Alternative Insurance Arrangements for Transportation of Hazardous Material In "Rail Transportation of Toxic Inhalation Hazards: Policy Responses to the Safety and Security Externality"3136 the authors make several policy recommendations on the transportation of toxic inhalation chemicals and discuss risk and liability alternatives for the transportation of such chemicals.
From page 609...
... 609 to a second pool.3139 The government then has the power to create a compensation system when damages exceed the second pool's funds.3140 The authors recommend the creation of a compensation fund by producers, transporters, and users who are involved in the movement of toxic inhalation hazards3141 to "internaliz[e] external costs" associated with the inherent risk in the transportation of hazardous materials by rail.3142 3139 Id.
From page 611...
... 611 limitations.3147 Section D addresses the federal requirement under certain circumstances that transit agencies must protect employees' collective bargaining and other rights by utilizing "protective labor agreements."3148 Section E addresses the rights of employees and the application of the First and Fourth Amendments of the United States Constitution to transit authorities.
From page 612...
... 612 representation disputes to its General Counsel[,] and oversees mediation and arbitration under the RLA."3153 In 1966, Congress enacted additional amendments to the RLA that gave both parties in a dispute the right to request a Public Law Board (PLB)
From page 613...
... 613 require an employee to agree to join or not join a labor organization.3159 The NMB's procedure for handling disputes that are cognizable under the RLA is set forth in 29 C.F.R.
From page 614...
... 614 employees, train dispatchers, maintenance-of-way men, clerical employees, freight handlers, express, station, and store employees, signal men, sleeping-car conductors, sleeping-car porters, and maids and dining-car employees."3165 The fourth division has jurisdiction over "disputes involving employees of carriers directly or indirectly engaged in [the] transportation of passengers or property by water[]
From page 615...
... 615 unable to resolve the dispute and agree to binding arbitration. If the parties decline arbitration and a mediation board concludes that a dispute "threatens substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service," the President is authorized to set up an Emergency Board (PEB)
From page 616...
... 616 The CBA provided for the imposition of discipline only after a "fair and impartial investigation."3175 A federal district in Illinois court relied on a previous precedent that set forth the standard for determining whether a case qualified as a minor dispute: Where an employer asserts a contractual right to take the contested action, the ensuing dispute is minor if the action is arguably justified by the terms of the parties' collective-bargaining agreement. Where, in contrast, the employer's claims are frivolous or obviously insubstantial, the dispute is major.3176 The court held that Norfolk Southern claims were "arguably justified." First, the CBA did not expressly prohibit the railroad's practice of using third-party expert reports, and, second, the practice actually was consistent with Norfolk Southern's and the union's past practices, as well as with common law applicable to the railroad industry.3177 Therefore, the court held that under its interpretation of the CBA the dispute qualified as a minor dispute, a decision that brought the matter under the NRAB's exclusive jurisdiction.3178 The court granted Norfolk Southern's motion for a summary judgment.3179 Another example of a minor dispute is Litaker v.
From page 617...
... 617 Litaker argued that he was disciplined for pursuing the resolution of a minor dispute through the mechanisms of the RLA. CSX argued that it disciplined Litaker for "insubordination pursuant to the collective bargaining agreements after he disobeyed the direct instructions of his supervisors when he continued to seek mileage reimbursement through the payroll system."3182 CSX further argued that Litaker did not follow the grievance protocol in the CBA and that the entire dispute should be considered a minor dispute under the RLA.3183 A Maryland federal district court held that both the entitlement to travel pay and the discipline issue were minor disputes within the NRAB's exclusive jurisdiction.3184 CSX's contention that the employee was "not entitled to the travel pay … is arguably justified by the terms of" certain contracts between the railroad and employee.3185 Furthermore, the issue of discipline "implicates the discipline procedures … [and]
From page 618...
... 618 resolve the issue,3189 a related issue was whether the dispute was a major or minor one under the RLA.3190 Major disputes require "conference, mediation, possibly voluntary arbitration, and a thirty day cooling-off period before either party may resort to economic self-help."3191 Minor disputes, however, are to be "resolved through binding arbitration."3192 In this case, because the unions previously had consented to surveillance practices the practices were regarded as implied agreements with KCS.3193 Thus, the court held that the dispute was a minor one regarding whether the implied agreements covered the installment of the cameras.3194 6. Preemption of State Law Claims In Johnson v.
From page 619...
... 619 under state law, thus preventing a federal district court from deciding the issue.3198 The court lacked jurisdiction because the claim had to be referred to arbitration.3199 7. Requirement that the NRAB Exercise its Jurisdiction In Union Pacific Railroad Co.
From page 620...
... 620 The Supreme Court affirmed the Seventh Circuit's decision but for a different reason.3205 The Court held that the panel's decision should have been overturned on statutory, not constitutional, grounds.3206 Although Congress granted the NRAB the power to make rules and processes for claims presented to it, the NRAB was not authorized to refuse to exercise its jurisdiction, i.e., the "jurisdiction to adjudicate grievances of railroad employees that remain unsettled after pursuit of internal procedures."3207 The Court held that by refusing to hear the claim on jurisdictional grounds the panel "failed ‘to conform, or confine itself, to matters [that Congress placed] within the scope of [the NRAB's]
From page 621...
... 621 services qualified as a "carrier" under the RLA.3212 Although the case does not involve railroad employees, the principles apply to all employees covered by the RLA. The workers planned a strike because of an employee's suspension that the employees considered to be unfair.3213 Aircraft Service International sought an injunction to prevent the strike.3214 After a district court granted a temporary restraining order and later a preliminary injunction the union appealed to the Ninth Circuit.3215 The union argued that the federal district court did not have jurisdiction under the Norris-LaGuardia Act and, alternatively, that the injunction violated the employees' First Amendment rights.3216 The Ninth Circuit held that the district court had jurisdiction because the NorrisLaGuardia Act, which "withdraws jurisdiction from federal courts to enjoin strikes ‘growing out of any labor disputes,'" does not prevent federal courts from issuing an injunction to compel the parties to comply with the requirements of the RLA.3217 The Ninth Circuit observed that the employees were unwilling to bargain and planned to strike, one of the very reasons that Congress enacted the RLA because "carrier employees collectively threatening a strike [are]
From page 622...
... 622 the injunction did not violate the employees' First Amendment rights. The court had held previously that the requirements of the RLA are "‘enforceable by whatever appropriate means might be developed on a case-by-case basis,' including strike injunctions."3219 Affirming the district court's decision, the Ninth Circuit held that the district court properly balanced the equities and did not abuse its discretion in ruling that the balance of the equities favored American Service International.3220 Articles 9.
From page 623...
... 623 differences among the three major labor relations laws, for example, explaining that "[u] nlike the RLA and NLRA, the FSLMRS does not have any emergency dispute resolution provisions."3224 10.
From page 624...
... 624 over collective bargaining agreements that are covered by the RLA.3230 Under the current framework a railroad has a duty to monitor engineers' performance; if an engineer violates a rule or is involved in an incident, the railroad conducts a hearing to determine whether the engineer's certification (also known as a license) should be revoked.3231 A decision may be appealed to the FRA Administrator and later to the Locomotive Engineer Review Board.3232 At the same time, a railroad may institute disciplinary proceedings against an engineer under the CBA that triggers the RLA's dispute resolution mechanism.3233 An arbitrator is required to make a decision in harmony with the FRA Administrator's decision when the FRA already has made a determination.3234 The article explains that there is a dilemma: On organized railroads, an appeal of the disciplinary penalty may be, and usually is, instituted by the Union pursuant to the CBA.
From page 625...
... 625 The article states that separate decisions, which could be contradictory, are made based on the same events and records.3236 To remedy the problem the article suggests that a RLA arbitrator should be allowed to make determinations both on the revocation of an engineer's certification and on the disciplinary matter.3237 C The Labor Management Relations Act Statutes 1.
From page 626...
... 626 jurisdiction. Section 301 creates a practical method for enforcing labor contracts in federal courts that also enables plaintiffs to recover money damages from labor organizations.3242 Cases 2.
From page 627...
... 627 In Abramowich, employees of CSX believed that CSX was paying them a rate lower than that specified in their agreement and was withholding back pay in violation of the CBA.3245 The Brotherhood of Locomotive Engineers and Trainmen (BLET) reached a settlement with CSX over the issues of the rate of pay and back pay; however, the employees were not convinced that the settlement provided them with their full back pay but were convinced that they had forfeited their rights to dispute the amount.3246 The employees' hybrid claim against CSX and BLET argued that CSX violated the RLA by committing a breach of the CBA and that BLET violated its duty of fair representation in its settlement of the employees' claim for back pay.3247 In hybrid actions a plaintiff must succeed on both claims to prevail; if the claim against the union fails then the claim against the employer will not proceed.3248 The court first approached the issue of whether BLET had committed a breach of its duty of fair representation.3249 The court held that although "a union has the duty to represent all members of the bargaining unit fairly" labor organizations also have some discretion because they "must attempt to satisfy the collective needs of a group of employees."3250 A plaintiff must prove that a labor organization's actions were "arbitrary, 3245 Id.
From page 628...
... 628 discriminatory, or made in bad faith."3251 Negligence or poor judgment is insufficient to succeed on a claim of breach of fair representation.3252 The court held that because of the risks inherent in arbitration BLET had logical reasons for settling with CSX for less than the full amount.3253 The court held that the employees presented no evidence that BLET's advice not to seek arbitration was made arbitrarily, discriminatorily, or in bad faith.3254 Furthermore, the court held that "contrary to Plaintiffs' arguments, the record is replete with evidence that the union avidly pursued a reasonable resolution of the Plaintiffs' claims against CSX in a rational and fair manner favorable to the Plaintiffs."3255 Finally, the court considered BLET's conduct in entering into the settlement agreement with CSX (but not the terms of the settlement) to determine whether BLET had violated its duty of fair representation.
From page 629...
... 629 3. Six-Month Statute of Limitations Applies to Hybrid Actions Congress did not include a statute of limitations in the FMRA on a claim by a union for a breach of fair representation, an issue that the Supreme Court addressed in 19833259 and 1987.3260 In 1983, the Court held that the six-month statute of limitations in the NLRA applied to hybrid actions and to actions for breach of fair representation under the LMRA.3261 The NLRA is similar to the RLA and covers workers in a wide variety of industries but not those already covered by the RLA.3262 In West v.
From page 630...
... 630 NLRA's procedures.3266 The Court remanded the case because the service of process complied with the Federal Rules of Civil Procedure.3267 D Protective Labor Arrangements for Employees of Transit Agencies Receiving Federal Funding Statutes 1.
From page 631...
... 631 effect before FTA funds may be released to a mass transit provider.3271 Thus, when § 13(c) applies, transit agencies must protect employees' rights to collective bargaining; preserve their rights, privileges, and benefits under existing collective bargaining agreements; maintain paid training or retraining programs; assure employees of continued employment and priority of reemployment in the event of lay-offs; and protect employees "against a worsening of their positions related to employment."3272 Case 2.
From page 632...
... 632 complained that his § 13(c) rights were violated "when he was placed in a temporary position with duties that were not comparable to the duties of his prior position."3275 The court remanded the matter to the trial court for findings on whether the parties were bound by an arbitration clause in the union contract with the city of Durham.
From page 633...
... 633 were submitting fraudulent bills for their work, a matter that Anemone referred to the Manhattan District Attorney's office.3282 Anemone also opened an investigation of the president of the Long Island Railroad (LIRR) to determine whether he had received improper gifts from Plasser American.3283 An Interim Report, however, issued by the Office of the Inspector General (OIG)
From page 634...
... 634 his allegedly protected expressive activity."3289 Second, the district court held that "a reasonable jury could not help but find that Anemone would have suffered the alleged adverse employment actions even in the absence of his allegedly protected activity."3290 Third, instances cited by Anemone as "protected activity ... were in fact unprotected employee speech...."3291 The Second Circuit affirmed the district court's decision.3292 2.
From page 635...
... 635 depot where the headgear policy did not apply.3297 A few months later a new policy allowed employees to wear turbans and headscarves with the Transit Authority logo.3298 Lewis was reassigned to a position as a station agent but was terminated because she did not wear the logo as required by the new policy.3299 After she was transferred to a position as a bus driver, the Transit Authority ultimately terminated her position; however, for medical reasons she could not perform the duties of a bus driver.3300 The suit against the Transit Authority claimed that the authority retaliated against Lewis for exercising her right to the free exercise of religion and her right of free speech.3301 A New York federal district court stated that when "‘the government seeks to enforce a law that is neutral and of general applicability ... it need only demonstrate a rational basis for its enforcement, even if enforcement of the law incidentally burdens religious practices.'"3302 The court held that the Transit Authority's policies were not facially neutral because after Lewis was transferred, the Transit Authority published a series of bulletins that indicated that the Transit Authority was targeting women who wore headscarves.3303 The court held that the transfer of female Muslim employees to the bus depot was not an action that was tailored to achieve the 3297 Id.
From page 636...
... 636 Transit Authority's goal of having a uniform workforce.3304 Because there was a genuine issue of material fact regarding whether the Transit Authority's policies violated Lewis's right to the free exercise of religion, the court denied the Transit Authority's motion for a summary judgment.3305 The plaintiff alleged that the Transit Authority also discriminated against Lewis for exercising her right of free speech when she spoke to the media on the policies regulating headgear.3306 Because the Transit Authority did not demonstrate that in the absence of her statements to the media it would have transferred Lewis multiples times and then terminated her, the district court denied the Transit Authority's motion for a summary judgment.3307 The court also denied the Transit Authority's motion for a summary judgment on the plaintiff's claims for "disparate treatment, failure to accommodate, disparate impact and retaliation," as well as other claims.3308 3. Regulations Requiring Rail Employees to Undergo Observed Drug Testing do not Violate the Fourth Amendment In BNSF Ry.
From page 637...
... 637 component.3310 BNSF argued that the regulation violated the Administrative Procedure Act (APA) and the Fourth Amendment's protection against unreasonable searches.3311 The DOT may promulgate regulations under the Omnibus Transportation Employee Testing Act of 1991 that requires drug tests for transportation employees.3312 In 2008, a new DOT regulation required all return-to-duty and follow-up tests to use a "direct observation" method that entailed a same-gender observer to watch the collection of the urine sample to ensure that an employee was not cheating.3313 The Supreme Court has held that compulsory urine tests are searches under the Fourth Amendment and that drug tests for transportation safety do not require warrants.3314 The District of Columbia Circuit held that the DOT regulations did not violate the Fourth Amendment "given the vital importance of transportation safety, the employees' participation in a pervasively regulated industry, their prior violations of the drug regulations, and the ease of obtaining cheating devices capable of defeating standard testing procedures."3315 The court also held that the DOT did not violate the APA's prohibition on arbitrary and capricious action when promulgating the regulations.3316 The DOT was justified in promulgating regulations that were more strict on drug testing after it 3310 Id.
From page 638...
... 638 concluded "that the growth of an industry devoted to circumventing drug tests, coupled with returning employees' higher rate of drug use and heightened motivation to cheat, presented an elevated risk of cheating on return-to-duty and follow-up tests that justified the use of mandatory use of direct observation."3317 3317 Id.
From page 640...
... 640 evidence is admissible to prove a railroad company's knowledge or notice of a dangerous condition of its property. Cases B
From page 641...
... 641 young to appreciate the danger."3319 Although most courts have not set an age limit, some courts have held that after the age of fourteen the rule is no longer applicable.3320 2. Obvious Trains Held not to be an Attractive Nuisance In Choate v.
From page 642...
... 642 preventing a potentially dangerous condition, the court held that the railroad did not have a duty to fence its property to prevent injury to children.3324 The imposition of such a duty would require a railroad to erect fences at great expense in all locations where children could trespass.3325 In the Choate case, moreover, although only portions of the railroad corridor were fenced, fencing would not have deterred the plaintiff who ignored the existing segments of fencing and existing warning signs.3326 The court held that "the responsibility for a child's safety lies primarily with his parents, whose duty it is to see that the child does not endanger himself."3327 The Supreme Court of Illinois reversed the ruling of an appellate court and later denied a petition for a rehearing.3328 3. Attractive Nuisance Doctrine Inapplicable to Moving Trains that Injure Children In Woods v.
From page 643...
... 643 The train's engineer, who saw the children in the vicinity of the tracks, sounded the train's whistle several times within a forty-three second span but failed to engage the emergency brakes until the boys ran toward the tracks.3332 A federal district court in Indiana held that the attractive nuisance doctrine did not apply when a child is injured or killed by a moving train.3333 In ruling that CSX was entitled to a summary judgment on the plaintiffs' attractive nuisance claim, the court stated: The overwhelming weight of authority [is that the attractive nuisance doctrine] does not apply as a matter of law in cases where child trespassers are injured by moving trains because a moving train is not a subtle or hidden danger and its potential for causing serious bodily injury or death to anyone in its path is readily apparent, even to young children.3334 The court also held that the FRSA preempted the plaintiffs' tort claims based on the train's speed as a train is not obligated to stop or reduce its speed until a specific, individual hazard is presented.3335 However, the FRSA did not preempt the plaintiff's claims for CSX's failure to maintain a lookout or its breach of duty to slow down when a specific hazard is presented, namely the boys' intent to cross the tracks.3336 Nevertheless, CSX was not liable for negligence.
From page 644...
... 644 negligence, the court dismissed the plaintiffs' remaining claims for negligent infliction of emotional distress and loss of services.3338 C Motor Vehicle Collisions with Trains Including at Highway-Railroad Grade Crossings 1.
From page 645...
... 645 manage or govern a railroad's decisions in the economic realm" as does a claim for negligence per se.3344 2. Preemption of FELA Claims by the Federal Railroad Safety Act and the Locomotive Inspection Act In Garza v.
From page 646...
... 646 3. FRSA's Preemption of State Laws on Collisions at Crossings In Driesen v.
From page 647...
... 647 However, the court also ruled that a jury would decide whether the driver's contributory negligence was more than fifty percent that would bar his recovery.3356 4. Liability of a Railroad Based on the Doctrine of Respondeat Superior The doctrine of respondeat superior imposes liability "upon an employer for the acts of his employees committed in the course and scope of their employment."3357 In England v.
From page 648...
... 648 The truck driver was negligent per se because he violated the Kansas statute; his railroademployer was held liable under the doctrine of respondeat superior.3362 Furthermore, the FRSA preempted the truck driver's claim that the crossing signals were defective.3363 The court granted the plaintiff's motion for a summary judgment.3364 D Contributory Negligence as a Defense to a Claim against a Railroad 1.
From page 649...
... 649 2. Railroad not Liable for the Death of a Person on the Tracks In Owens v.
From page 650...
... 650 3. Child Trespasser Statute Inapplicable to Occupier of Land In Jad v.
From page 651...
... 651 Articles 4. Standing Train Doctrine and other State Laws A 2008 law review article entitled "Railroad Law" analyzes Virginia law on railroad crossings, the effect of a railroad employee's contributory negligence on a claim under FELA, railroad crossings law, and other issues.3382 First, Virginia courts developed the "standing train" doctrine that relieves railroad companies of liability when a motorist crashes into the side of a non-moving train at a crossing.3383 In such cases, the courts have held that only the motorist is negligent.
From page 652...
... 652 [a] railroad shall not unilaterally select or determine the type of grade crossing warning system to be installed at any crossing of a public highway and railroad at grade.
From page 653...
... 653 from any recovery for a railroad company's alleged negligence.3394 For example, in Norfolk & Western Railway Co.
From page 654...
... 654 negligence from barring the plaintiff's claim.3401 On the other hand, some courts have not held that a plaintiff is contributorily negligent as a matter of law simply because the plaintiff was familiar with the crossing; rather, the courts permit the jury to decide whether the plaintiff was contributorily negligent.3402 When the issue is to be decided by a jury, a plaintiff should be allowed to submit evidence on the extent to which the train was visible to a motorist, particularly at night.3403 Cases E Contributory Negligence and Deaf Individuals In Box v.
From page 655...
... 655 realized that Ellis was not leaving the tracks the crew took all possible measures to avoid hitting her.3408 Although the court did not hold that walking on the tracks was negligence per se, the court held as a matter of law that "it is negligent for a deaf person to walk on a railroad track without utilizing carefully the remaining sense of sight."3409 The decedent's disability did not excuse her negligent conduct.3410 Moreover, the court held that the last clear chance doctrine, discussed below in subpart I, did not "apply to a case where the negligence of the person injured continued up to the very moment of the injury[] and was a contributory and efficient cause thereof."3411 The decedent's estate was unable to recover from the railroad.
From page 656...
... 656 responsible based on the rule of strict liability because there was no evidence that a defect in the train caused the accident.3414 2. Intoxication is not an Excuse for a Failure to Stop, Look, and Listen In Baker v.
From page 657...
... 657 G Liability of a Railroad because of Defective Crossing Gates Statutes and Regulations 1.
From page 658...
... 658 extended periods without the lights flashing.3427 Sometimes the gates would lower after cars were on the tracks.3428 In any event, the plaintiff had driven her car around two lowered gates before being struck by the train.3429 The court held that Conrail was not on notice of a defect "because Conrail inspected the signal system the day before the accident and found it to be working properly."3430 3. Liability of a Railroad when Crossing Gates Failed to Lower Prior to the Train's Approach In Mills v.
From page 659...
... 659 crossing."3434 The appeals court in this opinion reversed the trial court's decision that granted Norfolk Southern a new trial. The appeals court's opinion discusses the various federal regulations applicable to crossings at the time of the collision.
From page 660...
... 660 Fourth, a "‘delayed activation failure' occurs when the warning is activated late by the train after it passes the sensor so that the train reaches the crossing before the gates go down and before motorists can receive a proper warning of the approach of the train."3439 The court explained that "[d] elayed activation failures result from short circuits in the track circuit monitored by warning system control devices; this type of failure is called a ‘shunt.'"3440 The court held that "the facts all fit a delayed activation failure."3441 The court found that the [m]
From page 661...
... 661 After the appeals court's decision Norfolk Southern moved for reconsideration; however, the appeals court rejected Norfolk Southern's argument that the court should not have relied on 49 C.F.R. § 234.225 because the collision occurred in 1988 and the regulation was not adopted until 1994.
From page 662...
... 662 liability when a person is walking on a railroad track contrary to law.3449 Massachusetts law "expressly prohibits all manner of trespass on railroad property and, implicitly, the presence of unauthorized persons when the approach of a train is imminent, i.e., when the gates are lowered blocking entrance to the crossing."3450 The court held that a railroad operator is not negligent when an individual, including a minor, is injured or killed when the person is on a railroad track in violation of state law. Although Amtrak failed to sound its horn and exceeded the speed limit, the appellate court affirmed the dismissal of the plaintiff's claim for recklessness.3451 However, the Supreme Judicial Court of Massachusetts remanded the case to the trial court because the plaintiff had provided sufficient evidence to overcome Amtrak's motion for a summary judgment.3452 H
From page 663...
... 663 Pacific Railroad Company (Northern Pacific) that was transporting the logs.3455 The court held that the doctrine of res ipsa loquitor3456 applies to a railroad company when there is evidence that the company was negligent immediately prior to the accident.3457 When there is a prima facie showing that the doctrine of res ispa loquitor may apply, the burden shifts to the defendant to show that the defendant was not negligent.3458 Employees of Northern Pacific testified that the train had not moved after it was prepared for unloading; however, an employee of the rafting company testified that after a few logs had been unloaded the train moved fifteen to twenty seconds prior to the accident.3459 Based upon the testimony of the rafting company, the court held that the trial court's instruction on res ipsa loquitor was proper and affirmed the jury verdict that awarded damages to the surviving wife and administratrix of the decedent's estate.3460 2.
From page 664...
... 664 cargo from its train's cars because there was no evidence that N&W caused the accident.3462 A railroad has a limited duty to correct latent defects on the outside of the railcar observable by an inspection or to correct defects of which the railroad was previously made aware or that it created.3463 Casella was injured when a bale of paper struck him on the head as he opened the door to a railcar where the bale was stored.3464 However, the Fourth Circuit held that a railroad is only responsible for safely transporting cargo and is not "responsible for a shipper's improper loading of a bulk commodity which caused injury to an employee of the consignee."3465 I Last Clear Chance Doctrine 1.
From page 665...
... 665 plaintiff's claim did not apply because "[t] here was no compelling evidence establishing that there existed a time during which plaintiff was helpless while the train crew were not."3470 The plaintiff was helpless once it became apparent that he would not be able to stop his vehicle before reaching the railroad tracks.3471 The court affirmed in part and reversed in part by finding that the trial court erred in imposing liability on the train's engineer.3472 Article 2.
From page 666...
... 666 is an exception to the common law rule of contributory negligence, with proximate cause used as its justification or basis. Thus the defendant's ability to avoid the accident "renders plaintiff's negligence remote and defendant's negligence the proximate cause thereof." … Although a few states reject the doctrine, most will apply it where the plaintiff is in peril and cannot extricate himself from his situation and the defendant actually discovers this peril, has the opportunity to avoid the accident, but fails to do so because of a lack of reasonable care.3476 Cases J
From page 667...
... 667 However, the cross-examination showed that N&W was on notice of a hazardous condition at the crossing.3481 The signal maintainer admitted on cross-examination that he repaired the signals at the crossing over one hundred times over a two year period in 1991 and 1992;3482 that he repaired the gates at least once a week and sometimes twice a day in the months prior to the accident; and that N&W changed the material of the gate from wood to aluminum and fiberglass so that the gates could be repaired more quickly and less expensively.3483 The court held that N&W was liable under FELA because the railroad knew of prior accidents and broken crossing gates at the crossing but failed to warn employees of the hazard.3484 2. Inadmissibility of Evidence of Prior Accidents too Remote in Time In Richardson v.
From page 668...
... 668 and that the train's crew failed to use the train's horn and did not operate the train at a safe speed.3488 At trial, the plaintiff attempted to admit evidence of a prior accident at the same crossing that occurred thirteen years earlier. The Supreme Court of Mississippi held that accidents thirteen years apart are too remote to be admitted as evidence of prior accidents.
From page 669...
... 669 plaintiffs was driving in a northbound direction. The truck driver alleged that his vision was blocked by excessive vegetation and that the train failed to give any warning that it was approaching.3494 The trial court permitted evidence of two prior near misses at the same crossing, one involving a vehicle that was traveling northbound, and one that was traveling southbound.3495 The Supreme Court of Arkansas held that the party offering the evidence for admission has the burden of showing that the prior events are substantially similar to the accident being litigated.3496 The plaintiffs' evidence did not meet the test of substantial similarity when the evidence was based on vehicles that were travelling in opposite directions.3497 However, the trial court properly admitted evidence of overgrown vegetation that obstructed the vision of motorists travelling northbound.3498 The court affirmed the jury verdict in favor of the plaintiffs.
From page 670...
... 670 premises.3499 Evidence of prior accidents may not be used to show that a defendant was negligent but only to show that the defendant was on notice of a dangerous condition.3500 The article discusses two Missouri cases against railroads in which the plaintiffs wanted to present evidence of prior accidents. In one case, the Missouri Supreme Court upheld the appellate court's decision to "permit[]
From page 672...
... 672 In the MUTCD the phrase open to public travel "includes toll roads and roads within shopping centers, airports, sports arenas, and other similar business and/or recreation facilities that are privately owned but where the public is allowed to travel without access restrictions."3505 To remain eligible for federal highway and highway safety program funds, a state must adopt the national MUTCD as a state regulation; adopt a state MUTCD that is approved by the Secretary of Transportation as being in "substantial conformance"3506 with the national MUTCD; or adopt the national MUTCD in conjunction with a state supplement.3507 C MUTCD's Standards, Guidance, Options, and Support As explained by an Ohio court, the MUTCD is "organized to differentiate between ‘Standards that must be satisfied … Guidances that should be followed … and Options that may be applicable for the particular circumstances of a situation.'"3508 Only those provisions that are designated as standards are mandatory.3509 In the MUTCD a statement that is a standard signifies "required, mandatory, or specifically prohibitive practice regarding a traffic control device."3510 Standards typically use 3505 23 C.F.R.
From page 673...
... 673 the verb shall and never use the term should or may.3511 Standards are "sometimes modified by Options."3512 A guidance statement in the Manual is a "statement of recommended, but not mandatory, practice in typical situations, with deviations allowed if engineering judgment or [an] engineering study indicates the deviation to be appropriate."3513 Guidance statements typically use the verb should and never use the term shall or may.3514 Guidance statements also are sometimes modified by Options.3515 Although standards are mandatory, guidance statements are not mandatory.3516 As stated, standards and guidance statements may be modified by Options.3517 An option statement is a "statement of practice that is a permissive condition [that]
From page 674...
... 674 prohibition, or enforceable condition."3520 Support statements do not use the verbs shall, should, or may.3521 D Discussion of Some Specific Changes in Part 8 of the 2009 MUTCD On December 16, 2009, the FHWA published its final rule in regard to its notice of proposed amendments (NPA)
From page 675...
... 675 Section 8B.04 Crossbuck Assemblies with YIELD or STOP Signs at Passive Grade Crossings Standard: 01 A grade crossing Crossbuck Assembly shall consist of a Crossbuck (R151) sign, and a Number of Tracks (R15-2P)
From page 676...
... 676 ● The FHWA adopted a new Section 8A.06 on Illumination at Grade Crossings that contains information that had been included in Section 8C of the 2003 MUTCD.3529 ● The MUTCD includes a new Section 8A.07, Quiet Zone Treatments at Highway-Rail Grade Crossings. 3530 ● In Section 8B.01, Purpose, the existing SUPPORT and STANDARD statements were relocated from Section 10C.01 of the 2003 MUTCD with some editorial revisions.3531 ● Figure 8B–1 (Figure 8B–3 in the 2003 MUTCD)
From page 677...
... 677 E Revision 1 of the MUTCD Since 2009 the FHWA has made at least two important revisions of the MUTCD.
From page 678...
... 678 MUTCD in Section 1A.13 on definitions of headings, words, and phrases.3541 Second, the FHWA restored three guidance sentences that were included in Section 1A.09, "Engineering Study and Engineering Judgment," of the 2003 edition that were deleted in the 2009 edition. The guidance sentences that the FHWA restored and that now are a part of the 2009 MUTCD are: The decision to use a particular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgment.
From page 679...
... 679 a new edition or revision of the MUTCD, any new or reconstructed traffic control devices installed after adoption are required to be in compliance with the new provisions…."3545 However, unless the FHWA establishes compliance dates for upgrading existing devices, such "[e] xisting devices already in use that do not comply with the new MUTCD provisions are expected to be upgraded by highway agencies over time to meet the new provisions…."3546 G
From page 680...
... 680 conformance means that a state MUTCD or supplement conforms at a minimum to the standards included in the national MUTCD.3550 For example, Missouri has developed an FHWA-approved Engineering Policy Guide (EPG) that is in substantial conformance with the MUTCD.3551 Cases H
From page 681...
... 681 material required by the MUTCD."3555 However, on the MUTCD claims, the court, relying on precedents established by the United States Supreme Court and the Fifth Circuit, held that "federal law pre-empted state law at the time federally funded signals were installed at this crossing. The intervening installation of additional signs does not operate to replace federal law with state law.
From page 682...
... 682 plaintiff's negligence claims based on the train's excessive speed and the defendants' failure to issue a slow order, failure to warn, and inadequate warning devices.3562 However, the court denied the railroad defendants' motions to dismiss the plaintiff's negligence claims for defendants' failure to provide adequate visibility, failure to eliminate a dangerous condition, and failure to maintain a proper lookout.3563 3. Waiver of Federal Preemption based on Federal Funding to Upgrade or Replace Warning Devices In Indiana Rail Road Company v.
From page 683...
... 683 argued that "once federal funds have been applied in the installment of traffic warning devices at a particular railroad crossing, state tort law is preempted regardless of later changing circumstances…."3568 The court held, however, that federal preemption no longer applied: Because state funds were requested and granted, the Indiana Rail Road became responsible for assessing the crossing's safety needs pursuant to INDOT's regulations. There is no evidence indicating that the federal government approved the newly located crossbucks.
From page 684...
... 684 and the MUTCD § 8B.03 (2009 ed.)
From page 685...
... 685 the crossing was any more "deceptively dangerous … than the hundreds of other crossings in Mississippi."3580 3580 Id. at 539 (footnote omitted)
From page 687...
... 687 MAP-21, projects that improve commuter rail service are eligible under the same programs that can fund transit projects. As many commuter rail systems operate on the same tracks as Amtrak service, these projects can help improve reliability for both commuter rail and Amtrak trains."3587 As discussed in sections B through F, there are several sections of MAP-21 that may improve rail service.
From page 688...
... 688 $22,293,250 is available.3592 Although SSO programs oversee rail transit, not all funds may be used for any purpose related to rail transit. Funds for the SSO program are intended to support administrative and operating costs for State safety oversight of rail transit systems.
From page 689...
... 689 or "a rail fixed guideway public transportation system" that is under construction and will not be regulated by the FRA.3597 C Comprehensive Freight Plan In MAP-21 § 1118, added in a note to 23 U.S.C.
From page 690...
... 690 including the implementation of the freight transportation requirements of [MAP-21] " and the establishment of a National Freight Network.3602 According to the NFAC's charter, it shall undertake information gathering activities, develop technical advice, and present recommendations to the Secretary to further inform this policy including: development of a National Freight Strategic Plan; Establishment of the National Freight Network; Strategies to help States implement State Freight Advisory Committees and State Freight Plans; Development of measures of condition, safety, and performance for freight transportation...; [and]
From page 691...
... 691 E State of Good Repair Grants MAP-21 § 20027, amending 49 U.S.C.
From page 693...
... 693 Statutes and Regulations B Occupational Safety and Health Act and its Territorial Scope [T]
From page 694...
... 694 State agencies and courts still have jurisdiction over occupational safety and health standards and regulations promulgated pursuant to state law as long as there is no federal or national consensus standard that has been promulgated under § 655.3616 A state may apply to the Secretary of Labor to preempt applicable federal standards by submitting a state plan for the development of such standards and their enforcement; the Secretary may approve a plan based on eight criteria that are delineated in § 667.3617 The heads of federal agencies, except the head of the United States Postal Service, is responsible for establishing and maintaining "an effective and comprehensive occupational safety and health program which is consistent with the standards promulgated under section 655…."3618 C Occupational Safety and Health Standards and their Applicability The Code of Federal Regulations provides: None of the standards in this part shall apply to working conditions of employees with respect to which Federal agencies other than the Department of Labor, or State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C.
From page 695...
... 695 operations.3620 The FRA stated that it would focus its efforts on "addressing hazardous working conditions in those traditional areas of railroad operations in which [the FRA has] special competence."3621 The areas of railroad operation include track, roadbed, and associated devices and structures; equipment; and human factors.3622 The FRA continues to exercise its jurisdiction through regulations that are applicable to the areas identified.
From page 696...
... 696 the Discontinuance or Modification of Systems (49 C.F.R. part 235)
From page 697...
... 697 for employees not covered by the Hours of Service Act, the FRA has exercised its jurisdiction via the Hours of Service Act (45 U.S.C.
From page 698...
... 698 areas which are so much a part of the operating environment that they must be regulated by the agency with primary responsibility for railroad safety.3638 OSHA regulations on egress do not apply to rolling equipment but they do apply to fixed railroad facilities other than including sleeping quarters covered by the Hours of Service Act.3639 OSHA regulations governing powered platforms, manlifts, and vehicle-mounted work platforms do apply to the railroad industry.3640 With a few exceptions, OSHA regulations related to ventilation, occupational noise exposure, and radiation apply to the railroad industry.3641 First, 29 C.F.R. § 1919.94 does not apply to "locomotive cab or caboose environments, to passenger equipment, or to operational situations in yards or along the right-of-way."3642 Second, the FRA has exercised its jurisdiction over occupational noise exposure of employees in railroad operations.3643 Third, "[t]
From page 699...
... 699 regulations only apply in circumstances in which the DOT regulations do not apply, such as the use, handling, and storage of hazardous substances.3645 OSHA's General Environmental Controls govern sanitation, temporary labor camps, and specifications for accident prevention signs and tags.3646 The regulations on sanitation generally apply to railroad work places.3647 Except those covered by the Hours of Service Act the regulations on temporary labor camps apply to specified facilities.3648 The regulations on color codes for physical hazards apply to hazards other than those arising out of railroad operations.3649 OSHA regulations for accident prevention signs and tags do not cover safety signs for railroads.3650 OSHA's regulations that are associated with fire protection apply to the railroad industry except to fire protection on rolling stock.3651 OSHA's regulations relating to compressed gas and compressed air equipment apply except when the DOT's Hazardous Material Regulations apply or the compressed gas is used in the course of railroad operations.3652 3645 Id. "OSHA regulations concerning personal protective equipment apply according to their terms, except to the extent the general requirements might be read to require protective equipment responsive to hazards growing out of railroad operations." Id.
From page 700...
... 700 OSHA's regulations concerning the handling and storage of materials apply generally with two exceptions. FRA's policy statement provides, first, that "the general requirements of 29 C.F.R.
From page 701...
... 701 individual that a personal remedy for discrimination is available through OSHA, rather than FRA, and that the individual should personally contact OSHA.3657 The FRA is required to provide the individual with the appropriate contact information for OSHA and to advise the individual that he or she must file a complaint with OSHA within one hundred and eighty days of the alleged discrimination.3658 OSHA will send the FRA copies of complaints, findings, and orders that OSHA receives or issues under 49 U.S.C. § 20109.3659 The FRA has agreed to support OSHA at OSHA's request and when both have established procedures to coordinate and support the enforcement of 49 U.S.C.
From page 702...
... 702 Cases F Whether OSHA Regulations are Preempted in a Specific Case Callahan v.
From page 703...
... 703 In CSX Transp., Inc.
From page 705...
... 705 Discipline Policy.3672 After Union Pacific terminated Powell after a hearing, Powell appealed his termination to the Railway Labor Board, which denied his petition.3673 A federal district court in California held that the Railway Labor Act did not preempt Powell's wrongful termination claim because his cause of action was based on state law, not on a right conferred by a collective bargaining agreement.3674 However, the court held that the FRSA preempted Powell's claim under FELA. The court denied each party's motion for a summary judgment on the claim for eavesdropping.3675 The district court later granted Powell's motion for a summary judgment on the eavesdropping claim and granted Union Pacific's motion to deny Powell actual and punitive damages; thus, Powell could recover only statutory damages.3676 2.
From page 706...
... 706 statute completely.3679 Moreover, because "the Elams' negligence per se claim [was] based solely on Mississippi's antiblocking statute, it too is completely preempted."3680 As for the plaintiffs' simple negligence claims based on KCSR's alleged failure to provide adequate warnings of the train's presence at the crossing at issue, the court stated that the issue was "whether KCSR has demonstrated that providing such warnings would unreasonably burden or interfere with its switching operations."3681 KCSR relied on an affidavit to argue that the simple negligence claims were preempted.
From page 707...
... 707 vegetation to impede the flow of water through the ditch and a culvert that resulted in flooding of the plaintiffs' adjacent properties.3684 KCSR argued that the ICCTA preempted the plaintiffs' state law claims in tort for trespass, unjust enrichment, public and private nuisance, negligence, and negligence per se.3685 The Tenth Circuit held that the ICCTA could not be read to include the conduct that the Landowners complain of here.… These acts (or failures to act) are not instrumentalities ‘of any kind related to the movement of passengers or property' or ‘services related to that movement.' … [T]
From page 708...
... 708 4. ICCTA Held to Preempt Vermont Environmental Land Use Statute having a Pre-Construction Permit Requirement In Green Mountain R.R.
From page 709...
... 709 5. ICCTA Preempted a City Ordinance Regulating Transportation of Bulk Materials, Including Ethanol In 2008 Norfolk Southern began operating an ethanol transloading facility in Alexandria, Virginia to transfer shipments in bulk of ethanol from its railcars onto surface tank trucks operated by third parties.
From page 710...
... 710 matter of minimum track clearance, the Ohio regulation serves as a permissible gap filler in the federal rail safety scheme;"3700 thus, there was no preemption of state law.
From page 711...
... 711 its terms requires "that a railroad's drainage facilities ‘under or immediately adjacent to' the track ‘be maintained and kept free of obstruction[] ' … preempts Pennsylvania law governing storm water runoff."3705 However, in rejecting the argument the court stated: A regulation must do more than "touch upon or relate to [the]
From page 712...
... 712 paralyzed.3710 Zimmerman brought three tort claims under state law against Norfolk Southern.3711 The Third Circuit upheld Zimmerman's claims for excessive speed and failure to maintain a safe crossing area but held that the FRSA preempted Zimmerman's claim for negligence per se.3712 Zimmerman's claim for excessive speed was not preempted because the Norfolk Southern train was travelling at more than twice the speed limit, a violation of the speed limit established by federal law that also gave rise to a federal standard of care.3713 "[B] ecause 49 C.F.R.
From page 713...
... 713 grant of a summary judgment for Norfolk Southern on the negligence per se claim.3717 In 2013, the Supreme Court denied Norfolk Southern's petition for certiorari.3718 9. Preemption of State Law on Maximum Allowable Speed In CSX Transp., Inc.
From page 714...
... 714 10. Whether the ICCTA Preempts a State Statute Requiring a Railroad to Pay for Sidewalks In Adrian & Blissfield R.R.
From page 715...
... 715 C Recent Preemption Decisions by State Courts 1.
From page 716...
... 716 2. ICCTA Held to Preempt Oregon Statute that Prohibited Trains from Blocking Railroad-Highway Grade Crossings for More than Ten Minutes In 2009 in Burlington N
From page 717...
... 717 claim.3740 The San Luis Central Railroad (San Luis Central) brought an action alleging various state-law claims including for breach of contract against defendants3741 for $36,212.54 for the defendants' breach of a Car Service and Car Hire Agreement for the use of the plaintiff's railroad cars on the defendants' railroad lines.3742 A federal district court in Massachusetts pointed out that "[t]
From page 718...
... 718 more than 240 acres of land owned by Norfolk Southern.3748 After Intermodal rejected several offers by Norfolk Southern to purchase Intermodal's property, Norfolk Southern filed a petition with the NJDOT to acquire Intermodal's property through eminent domain.3749 An administrative law judge (ALJ) granted permission to Norfolk Southern to acquire the property and held that the ICCTA preempted the provision for on-site accommodation in N.J.
From page 719...
... 719 of a covenant granting an easement because the statute applies to regulatory acts and because voluntary agreements between two private parties presumptively are not regulatory acts. When determining whether § 10501 impliedly preempts claims for breach of contract and for breach of a covenant granting an easement, the Fourth Circuit applied the "the generally accepted test for ICCTA implied or conflict preemption: does the enforcement action ‘unreasonably interfer[e]
From page 720...
... 720 permitting ordinances, the town of Grafton, Massachusetts issued a cease and desist order against the construction of the facility.3760 The town also filed a complaint in the Superior Court for Worcester County, Massachusetts, which stayed its decision pending the STB's ruling on ICCTA preemption. The dispute between the parties was "whether the proposed transload facility would be part of G&U's transportation by rail carrier entitled to federal preemption, or rather a thirdparty transload operation run by non-railroads that may be regulated by states and localities."3761 Although the STB has jurisdiction to determine issues of preemption relating to the regulation of railroads, the activities at issue must "constitute ‘transportation' and must be performed by, or under the auspices of, a ‘rail carrier.'"3762 The Board generally considers six factors when determining whether transloading activities are within the Board's jurisdiction or are a part of an independent business.3763 (1)
From page 721...
... 721 operations as a rail carrier."3765 Therefore, the Board concluded that the facility would constitute transportation by rail carrier under the ICCTA, thus qualifying for federal preemption of the local permitting or preclearance requirements.3766 The Board granted Grafton & Upton's petition for a declaratory order that the local permitting ordinance was preempted by federal law.3767 2. ICCTA Preemption of Local Zoning Ordinance and Order In Boston and Maine Corporation and Springfield Terminal Railroad Company,3768 the petitioning railroad used a set of tracks and a warehouse located in the town of Winchester, Massachusetts.
From page 722...
... 722 building permits, zoning ordinances, and environmental and land use permitting requirements are preempted."3771 In this case, because a town zoning ordinance decreed that a warehouse was not allowed to operate as a freight yard, the town ordered all rail traffic to the warehouse to cease. However, the STB ruled that "[s]
From page 723...
... 723 are not federally preempted."3775 A section of BNSF's track was situated above an embankment adjacent to the petitioners' property. Although BNSF had fortified the embankment "by placing rock, rip-rap, and other material trackside" in anticipation of flooding by the Missouri River, the embankment had not prevented the flooding of the petitioners' farm.3776 According to the petitioners "the soil on their farm was washed away, rendering their property virtually worthless."3777 The petitioners alleged that BNSF constructed the embankment without proper drainage and that breaches in the embankment channeled floodwater onto their property.3778 The petitioners sought a declaration that their claims were not preempted by federal law and that, therefore, they could proceed with their state law claims for damages.3779 The STB observed that the ICCTA granted it "broad and exclusive jurisdiction over transportation by rail carrier" and that the broad definition of transportation includes any "property, facility, structure or equipment" related to the operation of a railroad.3780 The Board noted that § 10501(b)
From page 724...
... 724 applied' – that is, if they would have the effect of unreasonably burdening or interfering with rail transportation."3781 Even though the petitioners' claims were tort claims under state law, the claims arose out of the construction and maintenance of BNSF's tracks. The tracks are subject to the Board's exclusive jurisdiction "because damages awarded under state tort laws can manage or regulate a railroad as effectively as the application of any other type of state statute or regulation."3782 The Board concluded that the petitioners' state law claims were preempted under the ICCTA.
From page 725...
... 725 c. FRSA's Preemption of Local Regulation of Transportation of Hazardous Material In CSX Transportation, Inc.
From page 726...
... 726 h. Preemption by the FRSA Inapplicable when a Railroad Violates a Federal Safety Standard of Care In Sanchez v.
From page 727...
... 727 l. Preemption of Deed Requiring Amtrak to Maintain a Bridge in Perpetuity In City of New York v.
From page 728...
... 728 q. State Law on Agreements in Construction Contracts Preempted by Federal Law In O&G Industries, Inc.
From page 729...
... 729 b. Occupational Safety and Health Administration Regulations applicable to Catenary Poles and Ladders not Preempted In Callahan v.
From page 731...
... 731 K analyzes whether a PUC or the Surface Transportation Board (STB) has jurisdiction over the installation of new railroad bridges prior to charging railroads for their construction.
From page 732...
... 732 C California Public Utilities Commission The California the California Public Utilities Commission (CPUC)
From page 733...
... 733 inspectors to enforce compliance with state and federal safety regulations in the state.3823 The CPUC inspects railroad yards and tracks that pose the greatest safety hazard.3824 The CPUC is empowered to order more railroad trains or cars to meet the demands of rail traffic.3825 D Florida Public Service Commission The Florida Public Service Commission (FPSC)
From page 734...
... 734 valid provisions of the Staggers Rail Act of 1980."3830 The ICC has jurisdiction to enforce and administer laws establishing general safety requirements for railroad track, facilities, and equipment in Illinois.3831 The ICC requires railroad carriers to register with the ICC to operate in Illinois and requires registration to begin or to continue construction of any railroad tracks or facilities.3832 Under the Illinois Commercial Transportation Law, enforced by the ICC, rail carriers are required to provide adequate service at reasonable rates without discrimination.3833 No public roads may be built across a railroad track, nor may a railroad track be constructed across a public road, without the ICC's prior permission.3834 The ICC investigates all railroad accidents reported to the Commission.3835 Finally, the ICC implements a railroad safety education program, the Illinois Operation Livesaver.3836 F North Dakota State Public Service Commission Various statutes define the mission and powers of the North Dakota State Public Service Commission over the state's public utilities.3837 The Commission has limited power over the railroad industry because of the ICCTA's preemption of certain state laws and regulations as 3830 625 Ill.
From page 735...
... 735 discussed elsewhere in the Report.3838 However, the Commission continues to represent the state's interest before federal agencies and may enter into negotiations with rail carriers that conduct business in the state.3839 The Commission has jurisdiction over the rights of landowners in North Dakota, such as fencing along railroad rights-of-way, the sale of land adjacent to abandoned railroad rights of way, and leasing rates on property owned by railroads.3840 G West Virginia Public Service Commission The West Virginia Public Service Commission's railroad safety section in the transportation enforcement division is responsible for administering federal and state safety regulations that govern rail transportation.3841 The public safety section conducts inspections and enforces regulations that apply to the railroad industry in the state.3842 One responsibility of the Commission is to promote safe rail services.
From page 736...
... 736 H Wisconsin Public Service Commission The Public Service Commission of Wisconsin, an independent agency pledged to serve the public interest, regulates Wisconsin's public utilities.3844 However, the STB regulates railroad rates and services and thus preempts the state's regulation of rates and services.3845 The Commission retains jurisdiction to enforce federal regulations that apply to railroad services and to conduct fact-finding investigations on railroad practices.
From page 737...
... 737 Cases I Whether a PUC or the STB has Jurisdiction over the Installation of New Railroad Bridges prior to charging Railroads for their Construction In Union Pacific R.R.
From page 738...
... 738 the city filed a petition on December 16, 2003, the petition was dismissed without prejudice on August 16, 2006. The reason was that the parties did not want the case to remain on the ICC's docket while the city continued to search for funding for the highway portion of the project.3854 J
From page 739...
... 739 petition by arguing that under California state statutes the CPUC had no authority to alter the type of audible warning system used at at-grade pedestrian crossings.3860 The California court held that "however broad the scope of the commission's authority over railroad crossings may be, the commission does not have the authority to contravene the expressed will of the Legislature in this area."3861 The Public Utility Code § 7604, in accordance with 49 C.F.R. § 222.12, requires the use of locomotive-mounted audible warning devices at all crossings in California unless the crossing is located in a federally established quiet zone.3862 The court set aside the CPUC's decision that it had jurisdiction to consider approving the use of wayside horns in lieu of locomotive-mounted horns.3863 3860 Id., 218 Cal.
From page 741...
... 741 Statutes and Regulations B Audible Warnings at Highway-Rail Grade Crossings Federal law provides that to promote the quiet of communities affected by rail operations and the development of innovative safety measures at highway-rail grade crossings, the Secretary may, in connection with [the]
From page 742...
... 742 where locomotive horns are sounded routinely, the minimum length of a quiet zone may be waived when a new Quiet or Partial Quiet Zone is added to an existing quiet zone.3871 No later than the implementation date for a quiet zone, a quiet zone must be equipped at active grade crossings with warning devices having both flashing lights and gates in conformity with the Manual on Uniform Traffic Control Devices (MUTCD) .3872 Highway approaches to new Quiet and Partial Quiet Zones must "be equipped with an advance warning sign that advises the motorist that train horns are not sounded at the crossing."3873 Public highway-rail grade crossings in Quiet and Partial Quiet Zones that are "subject[]
From page 743...
... 743 [t] he public authority shall provide written notice, by certified mail, return receipt requested, of its intent to create a New Quiet Zone or New Partial Quiet Zone under § 222.39 … or to implement new [Supplementary Safety Measures (SSM)
From page 744...
... 744 Zone Establishment, and Notice of Quiet Zone Continuation is set forth in 49 C.F.R. § 222.43.3884 Section 222.7 states that part 222 of the C.F.R.
From page 745...
... 745 A county, statutory or home rule charter city, or town may apply to the Federal Railroad Administration for the establishment of a "quiet zone" in which the sounding of horns, whistles, or other audible warnings by locomotives is regulated or prohibited. All quiet zones, regulations, and ordinances adopted under this section must conform to federal law and the regulations of the Federal Railroad Administration under United States Code, title 49, section 20153.3894 Many states provide information on the federal and local statutes and regulations that are applicable to quiet zones, including California,3895 Michigan,3896 Ohio,3897 and Oregon.3898 Several cities such as Boulder,3899 Denver,3900 Richmond (CA)
From page 746...
... 746 Cases F California Law Regulating the Use of Audible Warning Devices Outside of Federal Quiet Zones In BNSF Railway Company v.
From page 747...
... 747 audible device mounted at a crossing was not in accordance with § 222.21.3907 The court ruled in favor of BNSF and, thus, set aside the decision of the Public Utilities Commission.3908 G Preemption and Administrative Procedures In BNSF Railway Company v.
From page 748...
... 748 preemption exemption."3913 Furthermore, the installation of wayside horns constitutes an "engineering improvement."3914 The court stated that "[m] aking certain that these modifications (1)
From page 750...
... 750 Retirement and Survivors' Improvement Act of 2001, and the American Recovery and Reinvestment Act of 2009. Section D explains some of the key provisions of the RRA.
From page 751...
... 751 and employees each pay taxes to the IRS to fund the Tier I and Tier II programs. Social Security and other taxes also fund the program.3927 C
From page 752...
... 752 employee is still alive.3931 The RRSIA repealed a monthly cap on retirement and disability benefits and increased benefits for certain widows of railroad workers.3932 Furthermore, the RRSIA created the National Railroad Retirement Investment Trust to invest money in government securities and nongovernmental assets.3933 The RRSIA also modified payroll taxes for railroad employers and employees and made other financial and accounting changes.3934 3. American Recovery and Reinvestment Act of 2009 The 2009 changes to railroad retirement plans occurred as a result of the American Recovery and Reinvestment Act (ARRA)
From page 753...
... 753 D Key Provisions of the Railroad Retirement Act 1.
From page 754...
... 754 (iii) individuals who have attained the age of sixty-two and have completed less than thirty years of service, but the annuity of such individuals shall be reduced by 1/180 for each of the first 36 months that he or she is under retirement age (as defined in section 216(l)
From page 755...
... 755 5. Other Individuals who are Eligible for an Annuity Other provisions of the RRA provide for an annuity for spouses,3944 surviving widows and widowers,3945 children,3946 and others.3947 6.
From page 756...
... 756 Decisions of the Board determining the rights or liabilities of any person under this subchapter shall be subject to judicial review in the same manner, subject to the same limitations, and all provisions of law shall apply in the same manner as though the decision were a determination of corresponding rights or liabilities under the Railroad Unemployment Insurance Act [45 U.S.C.
From page 757...
... 757 while working as a trainman.3957 The railroad employer argued that it mitigated damages by contributing to the railroad retirement pension plan from which the employee would receive an annuity.3958 The court held that the future benefits that would be received by the employee from his pension plan were the result of his length of service in the railroad industry and not because of his injuries.3959 Therefore, the railroad employer could not use the amounts contributed to the railroad pension system to reduce the damages to which the employee was entitled.3960 G Employers Subject to the Railroad Retirement Act In Herzog Transit Services v.
From page 758...
... 758 H Effect of Retirement on an Employee's Ability under FELA to Recover Damages for Lost Future Wages In CSX Transportation, Inc.
From page 759...
... 759 J Railroad Retirement Benefits are a Collateral Source The collateral source rule provides that if an injured party is receiving benefits from a collateral source that is independent of the wrongdoer, the benefits will not offset the amount of damages recoverable from one who caused the injury.3971 In Sloas v.
From page 760...
... 760 not 65.3976 Although the Maryland Special Court of Appeals noted the relevance of the age when an employee would become eligible for retirement benefits, the court held that Tiller's retirement benefits are a collateral source. Such evidence should be excluded at trial "‘because of the danger that the jury would use this evidence for the improper purpose of mitigating [Tiller's]
From page 761...
... 761 introduced to demonstrate the unlikelihood of a railroad worker working to age 65, the retirement percentages of railroad workers with 30 years of railroad experience that were discussed above do not require specific mention of pension benefits."3982 The authors argue that an expert for the defense "could presumably testify about the percentages of railroad workers with 30 years of railroad experience who retire at ages 60, 61, 62, and 63" as long as the intent is not to "bring pension benefits to the attention of the jury."3983 They discuss three "decisions that have reached the conclusion that pension benefits are an evidentiary collateral source in the sense that we have been describing."3984 M Railroad Retirement Tax Act and Role of Railroad Retirement Board According to the Internal Revenue Service (IRS)
From page 762...
... 762 whether an employer is an RRA employer are referred to as "determinations of coverage."3987 However, the IRS's policy is to construe "the term ‘employer' for RRTA purposes in the same manner" as the term is construed and applied for RRA and RUIA purposes.3988 The IRS also notes that the STB "requires companies involved in the transportation industry to file reports and to list in these reports all affiliated companies"3989 and that "[a] ny company listed in these schedules will generally be railroad employers set out in Treas.
From page 764...
... 764 B The Railroad Revitalization and Regulatory Reform Act Statute 1.
From page 765...
... 765 value to true market value of other commercial and industrial property in the same assessment jurisdiction."3995 State law determines the burden of proof for determining assessed value.3996 Finally, § 11501(c) of the 4R Act grants jurisdiction to federal district courts "without regard to the amount in controversy or citizenship of the parties" to provide relief when there is a violation of subsection (b)
From page 766...
... 766 Sny Island simply divided its operating budget by the total number of benefited acres and assessed a per-acre fee to each landowner based upon the number of acres owned. … On average, landowners paid $8.50 per acre.
From page 767...
... 767 rail carrier providing transportation subject to the jurisdiction of the Board under this part."4005 The district court held that the railroads failed to prove a violation under § 11501(b)
From page 768...
... 768 industrial property in the area; and (3) a competitive approach that compares railroad companies to their main competitors in the area.4011 The court concluded that the intent of Congress was that § 11501(b)
From page 769...
... 769 there are two possible classes from which to choose to compare railroad property and the property of other taxpayers: the "competitive mode class" and the commercial and industrial class.4017 The court stated that the purpose of § 11501(b)
From page 770...
... 770 D Scope of Section 11501(b)
From page 771...
... 771 property that is exempt [from a tax] " because exempt property is not covered under subsections (b)
From page 772...
... 772 discriminated against rail carriers because CSX's competitors are granted a competitive advantage.4034 The Supreme Court reversed and remanded the Eleventh Circuit's affirmance of a district court's dismissal of the CSX complaint.4035 The Court held that CSX could challenge Alabama's sales and use taxes on the basis that they discriminate against rail carriers under § 11501(b)
From page 773...
... 773 Although Alabama argued that motor carriers and rail carriers pay roughly the same amount in taxes in spite of the difference in the form of taxation, the state failed to justify why the rail carrier's competitors were exempt from the four percent sales tax.4040 This case, then, becomes much simpler than it would appear at first blush. Rail carriers pay the State's sales tax -- motor and water carriers do not.
From page 774...
... 774 There is simply no discrimination when there are roughly comparable taxes.4045 The Court remanded the case to the Eleventh Circuit for "for that court to consider whether Alabama's fuel-excise tax is the rough equivalent of Alabama's sales tax as applied to diesel fuel, and therefore justifies the motor carrier sales-tax exemption."4046 E Privately Owned, Unaffiliated Companies not are Protected by the 4R Act The 4R Act's bar on discriminatory taxes against rail carriers does not extend to privately owned companies when the challenged tax is not one that is imposed on a railroad company.
From page 775...
... 775 entities protected by the 4R Act may include adjuncts or corporate subsidiaries but not "unaffiliated enterprises that merely provide[] railcar repair services."4050 Statutes F
From page 776...
... 776 G Tax Liability for Trustees of Railroads Undergoing Reorganization Receivers or trustees of railroads undergoing reorganization must pay taxes when the railroad is still being operated as though it were conducted by an individual or corporation.4056 Federal law states that "officers and agents conducting any business under authority of a United States court shall be subject to all Federal, State and local taxes applicable to such business to the same extent as if it were conducted by an individual or corporation."4057 However, there are exceptions for specific situations, such as when the tax is a property tax secured by a lien against abandoned property4058 or the payment of the tax is otherwise excused under a specific provision of Title 11.4059 Article H
From page 777...
... 777 supposed "discrimination" as between types of industries-and not because the state is favoring in-state commercial interests.4061 The article discusses the Commerce Clause's impact on the 4R Act and focuses on Congress's unique treatment of railroads.4062 Although the article considers the 4R Act to be one that addresses economic protectionism, the author does conclude that Congress's treatment of railroads under the Act is more consistent with the historic application of the Commerce Clause rather than an unjustified usurpation of state power.4063 The author observes that the protection of "interstate transportation" is one of the rare areas where the Supreme Court "appears to do more under the dormant Commerce Clause than merely suppress state protectionism," likely because "there is a genuine … national interest in the existence of an effective transportation network linking the states' even though the ‘Constitution does not say that explicitly."4064 The article argues that there is a tendency for Congress to preempt state taxes because of the absence of "stated judicial rules that specifically impose limitations on such federal preemptions."4065 The absence of specific limitations creates unchecked Congressional "capacity to preempt state taxes."4066 The author argues that the Commerce Clause should be construed in a manner that respects both federal and state power.4067 4061 Id.
From page 779...
... 779 Statutes and Regulations B Railroad Unemployment Insurance Act 1.
From page 780...
... 780 employee is willing to work.4077 An employee is willing to work when the employee is "willing to accept and perform for hire such work as is reasonably appropriate" under the circumstances.4078 Cases C Whether a Company Acting as a Dispatcher is an Employer under the RUIA In 1994 the Railroad Retirement Board (Board)
From page 781...
... 781 subject to the [STB] ."4084 The Board reasoned that the parties before it and in other cases have assumed that the RUIA defines an employer in the same manner as the RRA.4085 The Board ruled that Herzog's role as a dispatcher was integral to the operation of intrastate trains and, therefore, that Herzog was a rail carrier under the statute.4086 The Seventh Circuit upheld the Board's decision because it was consistent with the factors that the Board must consider in determining whether a company is covered by the Act.4087 The factors include the purpose of the company, the ratio of carrier business to other business, and the nature of the carrier business separate from other activities.4088 D
From page 782...
... 782 February 26 to August 12, 2001.4091 Thereafter, Hudspeth was notified that she could not receive benefits when she already had received severance pay, a determination that the Board confirmed after the employee appealed.4092 Under the statute an employee may not receive benefits when the employee has received a separation allowance.4093 The Eighth Circuit affirmed the Board's ruling that severance pay the employee received was a "separation allowance" that barred her from receiving other benefits.4094 E Unemployment Benefits Unavailable to Workers who Refuse to Return to Work In Cobb v.
From page 783...
... 783 employment elsewhere and that he could not do so.4098 The court rejected Cobb's argument that he could "condition[] the ‘acceptance' of his restoration to seniority on" receiving back pay and affirmed the Board's decision.4099 F
From page 784...
... 784 under the RRA.4105 Because they had received overpayments the plaintiffs were informed that they needed to return half of their overpayment.4106 Linquist appealed the Social Security's authority to take half of her overpayment after she had already paid half to the Board; Burns appealed the Board's authority to take half of her overpayment after she had already paid half to Social Security.4107 A Missouri federal district court dismissed all claims against the Board by Burns because she should have pursued those claims when she sought judicial review in a prior case against the Board; however, she "will not be collaterally estopped from raising her due process and equitable estoppel claims against the Secretary."‘4108 The court granted Linquist's motion for class certification for all persons receiving benefits under both the SSA and RRA who are denied the right to receive half of their overpayment.4109 Neither the SSA nor the RRA specify how a deduction should be made if recipients are receiving benefits under both programs.4110 The court held that there should be coordination to ensure that beneficiaries "lose no more than $1 of benefits for each $2 of excess earnings."4111 4105 Id.
From page 785...
... 785 Articles H History of Railroad Unemployment Benefits An article in the Yale Law Journal describes the history of railroad unemployment insurance.4112 At the time the Social Security Act was passed, Congress expected the RUIA also to come to fruition, something that happened in 1938.4113 The Act established a national insurance program for employees of railroad companies.4114 The Railroad Retirement Board oversees the national insurance system under the Act.4115 The Act required railroad carriers to contribute three percent.4116 The schedule of benefits required under the Act, initially between a $1.75 and $3.00 per day, was less than the amounts provided to employees under state laws.4117 However, Congress reformed the Act in 1940 so that the benefits afforded to railroad employees would be similar to the average benefits under state law.4118 The article explains why the Act was enacted separately from the Social Security Act or other unemployment insurance acts at the time.
From page 786...
... 786 I Trends in Railroad Unemployment Insurance An article in the Monthly Labor Review summarizes trends in the railroad unemployment insurance program.4119 RUIA has been providing rail workers with unemployment benefits since 1939 when Congress provided a program for railroad workers because the federal-state unemployment systems proved problematic for railroad workers who often crossed state lines for work.4120 Employers must "pay a tax on each worker's earnings up to a certain limit" and a worker's benefits are based on his income in the calendar year prior to his claim.4121 The article states that the decline in railroad employment has led to more railroad employees' benefits under the RUIA.4122 Much of railroad traffic is seasonal because certain jobs relating to construction and maintenance require safe weather conditions and seasonal industries reduce their use of railroads in their off season.4123 Many beneficiaries tend to be repeat beneficiaries, a tendency suggesting that railroad employees may have trouble finding comparable work outside the railroad industry or fail to look beyond the rail industry for employment opportunities.4124 State unemployment compensation programs vary from state to state and in most instances railroad workers benefit more under the RUIA than they would have under a state 4119 Martha F
From page 787...
... 787 plan.4125 The article states that "5 to 10 percent of RUIA beneficiaries are unemployed for reasons that would disqualify them for benefits under most State programs," because state programs would not grant benefits to a worker who was "discharged or suspended from his last job (particularly for misconduct) , or was on strike."4126 State programs do not offer minimum or maximum payments as high as those offered under the RUIA.4127 Benefits are granted to beneficiaries for a longer period of time under the RUIA than state programs.4128 Older beneficiaries are more likely to exhaust the benefits because they are less likely than younger railroad workers to find work in other industries.4129 One of the article's conclusions is that the program under the RUIA is superior to state programs but that railroad employment is likely to decline and that railroad employees should be offered relocation benefits to enable them to seek gainful employment elsewhere.4130 4125 Id.
From page 789...
... 789 b. California Public Utilities Code Pursuant to its Public Utilities Code, California requires that when railroad tracks intersect with other railroad tracks "the rails of either or each road shall be so cut and adjusted as to permit the passage of the cars on each road with as little obstruction as possible."4134 Railroad companies in California are required to fence their tracks and property to prevent injury to domestic animals.4135 If a railroad's failure to fence its tracks and property results in an injury to a domestic animal, the railroad company must pay the owner the fair market price of the animal unless the owner was at fault.4136 California regulates rail facilities that handle hazardous cargo by requiring that the facilities be designed for storage and have adequate security.4137 California criminalizes certain behavior related to railroads.
From page 790...
... 790 2. Illinois The state of Illinois regulates railroads in chapter 610 of the Illinois Compiled Statutes; the city of Chicago regulates railroads pursuant to chapter 9-124 of its municipal code.
From page 791...
... 791 b. Railroad Obstruction Act The Railroad Obstruction Act prohibits a locomotive engineer from willfully and maliciously abandoning a locomotive on a railroad.4144 Under the law it is also a misdemeanor for a person to obstruct or conspire to obstruct the operation of a railroad company.4145 c.
From page 792...
... 792 is regulated by administrative rules and regulations, as well as by the charter of the city of New York.4150 a. New York Railroad Law New York requires railroads to construct and maintain fences to prevent farm animals such as sheep, cattle, horses, and pigs from entering the railway.4151 If fences are not constructed or are not in good repair a railroad may be held liable for any damages to a domestic animal.4152 New York requires that in cities of more than one million inhabitants a railroad having an electrified third rail must build and maintain a fence along the boundary of its right of way.4153 The New York Railroad Law requires that all railroad employees on passenger trains or working in stations for passengers wear a badge on their hats that designates their employment and the initials of their railroad corporation.4154 The Railroad Law prohibits railroads from transporting passengers or goods unless the rail carrier has an operable communications system.4155 Railroads in New York must provide sanitary locomotives with potable drinking water and clean toilets that provide privacy to those using them.4156 The Railroad Law requires: Whenever the commissioner of transportation shall cause to be personally served upon any railroad corporation controlling any tunnel or part of a tunnel in this 4150 Id.
From page 793...
... 793 state for the purpose of operating a railroad … by delivering a copy … of a notice or order of said commissioner of transportation, stating and specifying the structures to be erected, the manner, means, mechanical appliances and apparatus to be used in lighting or ventilating any tunnel or tunnels used by said corporation … said corporation shall[] within thirty days … cause said tunnel or tunnels so used by it as aforesaid to be lighted or ventilated, or both, in the manner … pointed out in said notice or order.4157 b.
From page 794...
... 794 another section of the Transportation Law, common carriers may not discriminate by charging different amounts to passengers or shippers when performing a "like and contemporaneous service."4164 4. New Jersey The Transportation Act of 1966 established New Jersey Department of Transportation (NJDOT)
From page 795...
... 795 on railroad property.4168 The South Dakota statute also requires that a railroad maintain a supply of fencing materials.4169 Under South Dakota law, a railroad has forty-five days to supply materials and construct a fence after it has received notice from a landowner that the landowner has finished a portion of a fence.4170 When a railroad fails to comply with the aforementioned statutes, the railroad will be liable for the cost of the landowner's materials that are needed to construct a fence and will be liable for all damages resulting from the railroad company's neglect or refusal to do so.4171 6. Wisconsin In Wisconsin, the boards of villages are authorized to request railroad companies to apply oil or water to their roadbeds to control dust.4172 Railroads are required to build and maintain fences and cattle guards as well as farm crossings.4173 Wisconsin requires railroad companies to provide certain safety information within fortyeight hours of applying pesticide to a right of way.
From page 796...
... 796 pesticide label; and emergency medical contact information.4174 Railroads are required to provide information about the pesticide to the public on its website and to train employees annually on pesticide safety.4175 C Railroad and Related Statutes in the Ten Largest or Most Populous States This subpart of the Report provides a listing by name and citation of the railroad and related statutes in the ten most populous states, including some states whose laws were summarized in the preceding subparts of the Report.
From page 797...
... 797 3. Georgia a.
From page 798...
... 798 n. Railroad Intoxicating Liquor Act, 610 Ill.
From page 800...
... 800 l. Special Powers of Railroads, Ohio Rev.
From page 801...
... 801 k. Rail Facilities, Tex.
From page 803...
... 803 The STB, both a regulatory and an adjudicatory body, has jurisdiction over issues pertaining to railroad rates and service and the restructuring of railroads, such as mergers, sales of lines, construction of line, and abandonment of lines.4178 The STB's jurisdiction extends to the structure, financing, and operations of intercity passenger bus companies, and certain rate matters pertaining to trucking companies, moving vans, non-contiguous ocean shipping companies, as well as the rates and services of certain pipelines not regulated by the Federal Energy Regulatory Commission.4179 After the Board has approved or exempted a transaction the participating rail carriers "may carry out the transaction, own and operate property, and exercise control or franchises acquired through the transaction without the approval of a State authority."4180 After the STB approves a transaction, a rail carrier is exempt from state and municipal laws that would inhibit the carrier's operation of its property.4181 However, when a purchase, lease, sale, consolidation, 4178 49 U.S.
From page 804...
... 804 or merger of a corporation is involved in a transaction, the transaction must be approved by a majority of the corporation's stockholders or by the number required by state law.4182 The Board's decisions may be located by accessing the STB website and clicking Decisions under QuickLinks on the right hand side of the page.4183 The Board has the authority to subpoena witnesses and records related to a Board proceeding; in a proceeding the Board may depose witnesses and order them to produce records.4184 The Board may "at any time on its own initiative because of material error, new evidence, or substantially changed circumstances-reopen a proceeding; grant [a] rehearing, reargument, or reconsideration of an action of the Board; or change an action of the Board."4185 The Board may begin an investigation of a rail carrier after a person has filed a complaint that a rail carrier providing transportation or service under the Board's jurisdiction has committed a violation of 49 U.S.C.
From page 805...
... 805 C Surface Transportation Board's Jurisdiction 1.
From page 806...
... 806 (A) the construction does not unreasonably interfere with the operation of the crossed line; (B)
From page 807...
... 807 capital in amounts adequate to provide a sound transportation system in the United States.4197 The STB has the authority to regulate and approve rate agreements made between railroads to ensure that the railroads are not colluding in charging shippers an unreasonable rate.4198 The STB is also empowered to exempt rate agreements from federal and state antitrust laws.4199 Cases D Surface Transportation Board Decisions 1.
From page 808...
... 808 authorization.4202 The court held that the STB's decision to grant MassDOT an exemption, the decision that the unions were appealing, was reasonable under a Chevron analysis.4203 The STB's interpretation both of the statute and the term railroad line were held to be reasonable; thus, the court upheld the STB's decision granting an exemption.4204 2. Whether a Transload Facility is Subject to the Surface Transportation Board's Jurisdiction In New York & Atl.
From page 809...
... 809 not have jurisdiction over a matter unless a rail carrier is engaged in transportation activity.4209 Although the railroad's actions constituted transportation, the court held that Coastal was not a rail carrier.4210 Nevertheless, the STB's jurisdiction "extends to the rail-related activities that take place at transloading facilities if the activities are performed by a rail carrier or the rail carrier holds out its own service through the third-party as an agent or exerts control over the third-party's operations."4211 Neither was NYAR controlling the activities of Coastal nor was Coastal acting as NYAR's agent; therefore, Coastal was not subject to the STB's exclusive jurisdiction.4212 Holding that the STB's decision was neither arbitrary nor capricious, the Second Circuit upheld the Board's ruling.4213 3. No STB Jurisdiction over Proposed Intrastate Passenger Rail Service in Florida In All Aboard Florida – Operations LLC and All Aboard Florida – Stations -- Construction and Operation Exemption -- in Miami, Fla.
From page 810...
... 810 with the petition AAF moved to dismiss for lack of jurisdiction on the ground that "the Line would be located entirely within the state of Florida and would not be part of the interstate rail network."4215 The Board noted its jurisdiction under 49 U.S.C.
From page 811...
... 811 The Board agreed that it lacked jurisdiction. The Board also stated that "the proximity of a planned station at or near an airport [did]
From page 812...
... 812 and had not been used for freight services since 1996.4227 The STB granted the exemption "subject to trail use, environmental, and standard employee protective conditions."4228 5. Railroads Ordered to Provide Weekly Reports In another recent decision, United States Rail Service Issues,4229 the STB ordered Canadian Pacific and BNSF to send the STB weekly reports of their fertilizer shipment delivery plans.4230 The reports must be sent for six weeks beginning April 25, 2014.4231 The STB made its decision after testimony by farmers and agricultural producers at a hearing in which they stated they would not be able to begin planting their spring crops without timely delivery of fertilizer.4232 6.
From page 813...
... 813 "both railroad-owned cars and privately owned cars when such privately owned cars are held on railroad property."4235 The STB also removed the proposed agency exception rule that eliminated liability for demurrage for an agent receiving rail cars on behalf of another if the rail carrier has notice that the person is an agent and also knows the identity of the principal.4236 Article 7. STB ruling that the California High-Speed Rail Authority comes within the STB's Jurisdiction An on line news article discusses a recent STB ruling that the California High-Speed Rail Authority comes within the STB's jurisdiction.4237 Although high-speed rail will operate within California, the track will serve Amtrak trains as well.4238 Because Amtrak trains are part of the interstate rail networks, the STB has jurisdiction over the California High-Speed Rail Authority.4239 The Authority is seeking an exemption from the STB's regulation.4240 Statute E
From page 814...
... 814 any order of the [STB] for the payment of money or the collection of fines, penalties, and forfeitures."4241 United States District Courts have jurisdiction "to enjoin or suspend, in whole or in part, a rule, regulation of the [STB]
From page 816...
... 816 the laws of a state for the use of a handgun for the purpose of law enforcement.4252 FOPA prohibits "any common or contract carrier to transport or deliver in interstate or foreign commerce any firearm or ammunition" if the carrier knows or has reason to know "that the shipment, transportation, or receipt thereof would be in violation of" FOPA.4253 Common carriers are prohibited from delivering a firearm in interstate or foreign commerce without obtaining written acknowledgement that the firearm package has been received.4254 Regulations C Amtrak's Rules on the Possession of Firearms and other Devices on Trains 1.
From page 817...
... 817 devices; and martial-arts and self-defense items, including but not limited to billy clubs, nightsticks, and nunchuks.4255 Amtrak also bans sharp objects such as axes, ice picks, knives, spears and swords on their trains, but scissors, nail clippers, corkscrews, and razors are allowed in carry-on baggage. Sheathed equipment, including fencing equipment, is also allowed to be transported in checked baggage.4256 Article 2.
From page 818...
... 818 Statutes D State Laws Regulating the Transportation or Use of Weapons Directed against Railroads Some states have statutes that regulate the possession, transportation, or use of firearms or other devices on railroads.4260 In addition, some states prohibit firearms and other devices being directed at or near railroads.
From page 819...
... 819 4. Illinois In Illinois, a person commits a criminal offense when he or she shoots a firearm at any portion of a railroad.4264 5.
From page 820...
... 820 caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person … shall be guilty of a felony of the second degree….4267 7. Minnesota A Minnesota statute applies to various crimes committed against railroad employees and property, including action intended to cause a derailment or other forseeable risk of harm.4268 However, subdivision 3 of the statute applies to anyone who "intentionally shoots a firearm at any portion of a railroad train, car, caboose, engine or moving equipment so as to endanger the safety of another…."4269 8.
From page 821...
... 821 10. Montana Montana prohibits "knowingly...
From page 822...
... 822 15. South Dakota South Dakota prohibits entering a train with any type of weapon intending to commit a crime.4278 16.
From page 823...
... 823 premeditated…." When such an "act is committed unlawfully, but not maliciously, the person so offending is guilty of a Class 6 felony and, in the event of the death of any such person, resulting from such unlawful act, the person so offending is guilty of involuntary manslaughter."4281 19. Washington A Washington statute applies to malicious injury to railroad property: Every person who, in such manner as might, if not discovered, endanger the safety of any engine, motor, car or train, or any person thereon, shall in any manner interfere or tamper with or obstruct any switch, frog, rail, roadbed, sleeper, viaduct, bridge, trestle, culvert, embankment, structure, or appliance pertaining to or connected with any railway, or any train, engine, motor, or car on such railway, and every person who shall discharge any firearm or throw any dangerous missile at any train, engine, motor, or car on any railway, is guilty of a class B felony and shall be punished by imprisonment in a state correctional facility for not more than ten years.4282 20.
From page 824...
... 824 on the railroad.4285 The Fund denied benefits to him because he was terminated for a willful violation of a railroad's policy on firearms.4286 An Alabama appellate court stated that the Fund had not acted arbitrarily when it made its decision and reversed the lower court for substituting its judgment for that of the Fund.4287 F Railroad not Liable when an Employee's Gun Injuries another Employee In Cluck v.
From page 825...
... 825 argued that the doctrine of respondeat superior did not apply in FELA actions and that he only needed to show that Clark (the pistol owner) was acting on behalf of the employer at the time of the shooting.4292 The court, however, disagreed: To submit an imputed negligence claim under FELA, Petitioner was obligated to make a submissive case that he and Clark were acting within the cause and scope of their employment, that is, that Clark's negligent conduct was undertaken in furtherance of the interests of the employer.4293 The court held there was no reversible error and affirmed the judgment in favor of Union Pacific.4294 4292 Id.

Key Terms



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