Burlington Northern R. Co. v. State of Mont.

• Decision Date: 26 July 1989
• Docket Number: 87-4455,Nos. 87-4428,s. 87-4428
• Citation: 880 F.2d 1104
• Parties: BURLINGTON NORTHERN RAILROAD COMPANY, Plaintiff-Appellee, v. STATE OF MONTANA; the Montana Department of Public Service Regulation, Public Service Commission; and Michael Greely, Attorney General, Defendants-Appellants, and United Transportation Union, Defendant-Intervenor-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1104

880 F.2d 1104

BURLINGTON NORTHERN RAILROAD COMPANY, Plaintiff-Appellee, v. STATE OF MONTANA; the Montana Department of Public Service

Regulation, Public Service Commission; and

Michael Greely, Attorney General,

Defendants-Appellants,

and

United Transportation Union, Defendant-Intervenor-Appellant.

Nos. 87-4428, 87-4455.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1989.

Decided July 26, 1989.

Timothy R. Baker, Montana Dept. of Public Service Regulation, Public Service Com'n, Helena, Mont., and Joe R. Roberts, Asst. Atty. Gen., Dept. of Justice, Helena, Mont., for defendants-appellants.

Betty Jo Christian, Steptoe & Johnson, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before HUG, NORRIS and THOMPSON, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

The State of Montana appeals a decision of the United States District Court for the District of Montana holding that a Montana statute requiring an occupied caboose on trains more than two-thousand feet in length is preempted by Federal Railroad Administration ("FRA") safety regulations. Those regulations were issued under the Federal Railroad Safety Act ("FRSA"), Pub.L. No. 91-458, 84 Stat. 971 (1970), codified at 45 U.S.C. Secs. 421-445 (1982), which gives the FRA comprehensive regulatory authority over national railroad safety issues. The FRSA requires that "laws, rules, regulations, orders, and standards, relating to railroad safety shall be nationally uniform to the extent practicable," and provides that a state may regulate railroad safety only to the extent no federal action has been taken "covering the subject matter" of the state regulation. 45 U.S.C. Sec. 434 (1982). Our appellate jurisdiction rests on 28 U.S.C. Sec. 1291.

Pursuant to its authority under FRSA, the FRA in 1986 promulgated two regulations affecting cabooses. The first regulation amended existing rules for monitoring rear-end marking devices on passenger, commuter and freight trains. Under the previous rules, a train crew member was required to perform specified visual observations to monitor the condition of the rear-end marking device, which as a practical matter involved stationing an employee in the last car of the train. See 51 Fed.Reg. 25,181-82 (1986). As amended, the regulations permit the use of radio telemetry equipment as an alternative to visual observation. 49 C.F.R. Secs. 221.5-16 (1987). By offering an alternative to visual observation, the amended rules dispense with the need for occupied cabooses.

The second FRA regulation amended the FRA's rules for monitoring the operation of rear-train power brakes. The amended rules likewise have the effect of accommodating cabooseless trains by permitting the use of a telemetry device to monitor brake pipe pressure in the rear car of a train in lieu of visual observation. See 49 C.F.R. Secs. 232.13, 232.19 (1987).

In the FRA rulemaking proceedings, those opposing the amendments focused on the caboose issue, arguing that "the elimination of a caboose from the end of the train adversely affects safety" and requesting that the FRA affirmatively require the use of occupied cabooses on trains. 51 Fed.Reg. 17,300 (1986). The FRA, however, rejected "this line of analysis." Id. After considering the evidence and arguments presented, the agency refused to impose any caboose requirement, based on its determination that it "does not consider the lack of a caboose to be a safety issue per se." Id. at 17,301.

The question presented by this appeal is whether the FRA's actions preempt Montana's law requiring occupied cabooses. The FRSA contains its own preemption provision, preserving a limited role for the states in rail safety regulation:

A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.

45 U.S.C. Sec. 434 (emphasis added). The State of Montana concedes that its caboose law is not designed to reduce an "essentially local" safety hazard. See Brief of Appellants at 10. Consequently, the sole question before us is whether the FRA actions have "cover[ed] the subject matter" of the Montana caboose law.

For purposes of Sec. 434 of the FRSA, a state regulation "covers the same subject matter" as an FRA regulation if it addresses the same safety concerns as the FRA regulation. See, e.g., Southern Pacific Transportation Co. v. Public Utilities Comm. of California, 647 F.Supp. 1220, 1225 (N.D.Cal.1986), aff'd, 820 F.2d 1111 (9th Cir.1987) (per curiam). The Fifth Circuit's decision in Donelon v. New Orleans Terminal Co., 474 F.2d 1108, 1112 (5th Cir.1973), cert. denied, 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973), is instructive. In Donelon, local authorities sought to compel a railroad to improve the condition of tracks that caused train derailments, even though the FRA had declared the tracks safe. The Fifth Circuit held that because the FRA had adopted track safety standards, a city could not take additional steps to prevent derailments. See id. at 1110-12. See also National Ass'n of Regulatory Utility Commissioners v. Coleman, 542 F.2d 11 (3d Cir.1976) (holding a state requirement that railroads file monthly accident reports preempted by an FRA regulation which also required monthly accident reports). Cf. Southern Pacific Transportation Co. v. Public Utilities Comm. of California, 820 F.2d 1111 (9th Cir.1987) (per curiam), aff'g, 647 F.Supp. 1220 (N.D.Cal.1986) (holding that a state rule regulating the distance between train tracks and surrounding buildings was not preempted by FRA regulations of track drainage and visibility, because the state regulations were designed to guarantee a safe working environment for train employees, while the federal regulations were designed simply to facilitate speedy maintenance work).

Applying this standard, we hold that Montana's caboose law is preempted by the FRA regulations permitting the use of telemetry devices as substitutes for visual inspection at the rear of trains. The new regulations reflect the FRA's judgment that telemetry devices may be substituted for occupied cabooses to perform the safety function of monitoring the operation of brakes and signals at the rear of trains. Visual inspection is no longer necessary, the FRA has decided, because electronic monitoring is an equally effecting method of assuring train safety. See 51 Fed.Reg. 17300 (1986) (use of telemetry in lieu of visual inspection of brakes "offer[s] safety benefits"); 51 Fed.Reg. 25180 (1986) (use of telemetry in lieu of visual inspection of rear-end markers "enhance[s] railroad safety").

Montana does not argue that its caboose law serves any safety functions different from those served by the FRA regulations. Instead, it argues that the FRA regulations leave open the possibility of state caboose requirements because the regulations "neither encourage nor discourage" the use of cabooses. In essence, the state's position is that because the FRA regulations are not designed to prevent or even discourage the use of...