882 F.2d 1349 (8th Cir. 1989), 88-5358, Burlington Northern R. Co. v. State of Minn.

Docket Nº:88-5358.
Citation:882 F.2d 1349
Party Name:BURLINGTON NORTHERN RAILROAD COMPANY; Chicago and North Western Transportation Company; Duluth, Missabe & Iron Range Railway Company; Duluth, Winnipeg & Pacific Railway Company; Soo Line Railroad Company; Dakota, Minnesota & Eastern Railroad Corporation; Minnesota Commercial Railway Company; MNVA Railroad, Inc.; Otter Tail Valley Railroad Company,
Case Date:August 23, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1349

882 F.2d 1349 (8th Cir. 1989)

BURLINGTON NORTHERN RAILROAD COMPANY; Chicago and North

Western Transportation Company; Duluth, Missabe & Iron

Range Railway Company; Duluth, Winnipeg & Pacific Railway

Company; Soo Line Railroad Company; Dakota, Minnesota &

Eastern Railroad Corporation; Minnesota Commercial Railway

Company; MNVA Railroad, Inc.; Otter Tail Valley Railroad

Company, Inc.; and Wisconsin Central Ltd., Appellees,

v.

STATE OF MINNESOTA; Rudolph G. Perpich, Governor of the

State of Minnesota; Hubert H. Humphrey III, Attorney

General of the State of Minnesota; Michael A. McGrath,

State Treasurer of the State of Minnesota; United

Transportation Union; R.L. Marceau; G.P. Schiller; D.B.

Snyder; Mel Winter; D.F. Markgraf; P.H. Bausch; R.D.

Darsie; Raymond Nyman; Raymond A. Rask; J.E. Beyer; W.G.

Frenz; and J.A. Morgan, Appellants.

No. 88-5358.

United States Court of Appeals, Eighth Circuit

August 23, 1989

Submitted March 15, 1989.

Page 1350

Mark B. Levinger, St. Paul, Minn., for appellants.

Betty Jo Christian, Washington, D.C., for appellees.

Before JOHN R. GIBSON and BOWMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The single issue in this appeal is whether the Minnesota occupied caboose law, Minn.Stat. Sec. 219.559 (1988), which requires that an occupied caboose be attached to the end of a train, is preempted by the Federal Railroad Safety Act, 45 U.S.C. Secs. 421-444 (1982), and the regulations of the Federal Railroad Administration (FRA). Burlington Northern Railroad Company and a group of other railroads operating in Minnesota brought this action challenging the Minnesota caboose statute on a variety of constitutional grounds, including that of preemption by the Railroad Safety Act. The district court granted Burlington Northern's motion for summary judgment, holding that the adoption of certain regulations concerning rear-end marking devices and power brakes on trains by the FRA implicitly preempted the Minnesota law. On appeal the State of Minnesota challenges the district court's holding that its caboose law is preempted. We affirm the judgment of the district court. 1

I.

When cabooses were first introduced in the nineteenth century, they served a distinct operating function. In Missouri Pacific R.R. v. Railroad Comm'n of Tex., 850 F.2d 264 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 794, 102 L.Ed.2d 785 (1988), the Fifth Circuit summarized the history of the caboose:

Cabooses once were essential to train operation. Braking and speed were controlled in the caboose, and from it the crew could observe the movement of the train and check for overheating of the brakes, axles, and wheels. Technological advances over the years have greatly diminished the importance of cabooses to safe train operation. Automatic brakes are controlled from the locomotive, advances in wheel bearings decrease the risk of overheating, and monitoring devices simulate rear-car observation.

Missouri Pacific, 850 F.2d at 265. Thus, with the development and widespread use of power brakes, centralized traffic control, automatic block signal systems and automated rear-end devices, the operational and safety justifications for the caboose diminished. Industry-wide collective bargaining agreements, however, still required that cabooses be used in most circumstances. In 1982, this caboose requirement was largely eliminated when the United Transportation Union entered into an agreement with most of the nation's railroads, including Burlington Northern, which authorized a railroad to seek, with the union's approval or

Page 1351

through arbitration, removal of cabooses from its trains. 2

Following ratification of the 1982 collective bargaining agreement, four states, including Minnesota, enacted legislation requiring the use of cabooses. 3 Enacted in 1988, the present Minnesota caboose law states: "a railroad company may not operate a freight train 2,000 feet long or longer, if the train is handling placarded cars or is operated without block signals, unless the rear car is a caboose that is occupied by at least one member of the train crew." Minn.Stat. Sec. 219.559(1). The law expressly exempts certain trains, such as unit grain and unit taconite trains. Id. at Sec. 219.559(2)(b)(4 & 5). It also exempts a railway company that operates a railroad in Minnesota and the two adjoining states, if the total trackage of the railroad company, including trackage rights, is more than 950 miles and less than 1,000 miles. Id. at Sec. 219.559(2)(b)(3). 4 Thus, the Minnesota law requires railroads operating within the state to add cabooses to those trains that previously ran without cabooses pursuant to the 1982 bargaining agreement.

In 1986, the technological advances that made it possible to operate a train safely without a caboose led the Federal Railroad Administration, under the authority of the Federal Railway Safety Act, to enact two regulations affecting cabooses. 5 The first FRA regulation concerned rear-end marking devices for passenger, commuter and freight trains. A train crew member previously had been required to visually monitor the condition of the marking device, which, as a practical matter, meant that an employee had to be stationed in a caboose at the end of the train. See 51 Fed.Reg. 25,180-82 (1986). The amended regulation, however, permitted the use of radio telemetry equipment as an alternative to visual operation, thereby facilitating the operation of cabooseless trains. See 49 C.F.R. Secs. 221.5-.16 (1987).

The second FRA regulation amended power brake rules by permitting the use of a telemetry device to monitor brake pipe pressure at the rear car of a train in lieu of visual observation. See 49 C.F.R. Secs. 232.13, 232.19 (1987). This regulation also accommodated cabooseless trains. The FRA adopted these rules only after it determined that the use of the telemetry devices would be at least as safe as visual observation from the rear of the train. See 50 Fed.Reg. 35,637, 35,641 (1985).

Burlington Northern brought this action challenging...

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