Burlington N. & Santa Fe Ry Co v. Doyle

• Decision Date: 23 July 1999
• Docket Number: Nos. 98-4057,98-4149,98-4166,s. 98-4057
• Citation: 186 F.3d 790
• Parties: (7th Cir. 1999) Burlington Northern and Santa Fe Railway Company, Soo Line Railroad Company, Union Pacific Railroad Company, and Wisconsin Central Ltd., Plaintiffs-Appellants, Cross-Appellees, v. James E. Doyle, Attorney General of Wisconsin, E. Michael McCann, District Attorney of Milwaukee County, Thomas L. Storm, District Attorney of Fond du Lac County, et al., Defendants-Appellees, Cross-Appellants, and United Transportation Union, Intervening Defendant-Appellee, Cross-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 790

186 F.3d 790 (7th Cir. 1999)

Burlington Northern and Santa Fe Railway Company, Soo Line Railroad Company, Union Pacific Railroad Company, and Wisconsin Central Ltd., Plaintiffs-Appellants, Cross-Appellees, v. James E. Doyle, Attorney General of Wisconsin, E. Michael McCann, District Attorney of Milwaukee County, Thomas L. Storm, District Attorney of Fond du Lac County, et al., Defendants-Appellees, Cross-Appellants, and United Transportation Union, Intervening Defendant-Appellee, Cross-Appellant.

Nos. 98-4057, 98-4149, 98-4166

United States Court of Appeals, Seventh Circuit

Argued May 19, 1999

Decided July 23, 1999

Appeals from the United States District Court for the Eastern District of Wisconsin. No. 97 C 1382--J.P. Stadtmueller, Chief Judge. [Copyrighted Material Omitted] Before Harlington Wood, Jr., Flaum, and Manion, Circuit Judges.

Manion, Circuit Judge.

The plaintiffs, four railroads that operate in Wisconsin, sued the Wisconsin attorney general and three county district attorneys seeking a declaration that a Wisconsin law requiring train crews to consist of at least two persons and also requiring crew members to have certain qualifications is preempted by federal regulations promulgated under the Federal Rail Safety Act, 49 U.S.C. sec. which represents nearly all unionized trainmen in the United States, intervened as a defendant. The district court decided the case on cross motions for summary judgment. It held that the parts of the statute requiring certain qualifications for engineers and train crew members were preempted, but held that the part requiring two-person crews was not. The railroads appeal from the ruling regarding the two-person crew requirement. We disagree with the district court's conclusion that the two-person crew requirement is preempted in no circumstances. We hold that federal regulations have approved the use of one-person crews in two types of operations but not in a third. Thus, Wisconsin's two-person crew requirement is preempted in part. The defendants cross-appeal from the finding that the statute's crew qualification provisions are preempted. We agree with the district court. We also hold that the state law is severable, so that the part that is not preempted can survive on its own. We therefore affirm the judgment of the district court in part and reverse in part.

I.

A. Wisconsin's Two-Person Crew Law and This Suit

On December 15, 1997, Wisconsin enacted Wis. Stat. sec. 192.25 to regulate the qualifications of train crew members and to require at least two persons in all train crews. In its entirety, the statute provides:

(1) In this section:

(a) "Certified railroad locomotive engineer" means a person certified under 49 CFR 240 as a train service engineer, locomotive servicing engineer or student engineer.

(b) "Qualified railroad trainman" means a person who has successfully completed a railroad carrier's training program and passed an examination on railroad operation rules.

(2)No person operating or controlling any railroad, as defined in s. 85.01(5), may allow the operation of any railroad train or locomotive in this State unless the railroad train or locomotive has a crew of at least 2 individuals. One of the individuals shall be a certified railroad locomotive engineer. The other locomotive engineer or a qualified railroad trainman. A certified railroad locomotive engineer shall operate the control locomotive at all times that the railroad train or locomotive is in motion. The other crew member may dismount the railroad train or locomotive when necessary to perform switching activities and other duties in the course of his or her job.

(3)(a) The office, by rule, may grant an exception to sub. (2) if the office determines that the exception will not endanger the life or property of any person.

(b) Subsection (2) does not apply to the extent it is contrary to or inconsistent with a regulation or order of the federal railroad administration.

(4)Any person who violates sub. (2) may be required to forfeit not less than $25 nor more than $100 for a first offense, not less than $100 nor more than $500 for a 2nd offense committed within 3 years, and not less than $500 nor more than $1,000 for a 3rd offense committed within 3 years.

Section 192.25 was to become effective January 1, 1998. On December 31, 1997, the plaintiffs filed this suit, naming the Wisconsin Attorney General and three county district attorneys as defendants.¹ (For convenience, we will refer to these defendants as "Wisconsin.") Three of the plaintiffs are large, national railroads: Burlington Northern & Santa Fe Railway Company, Soo Line Railroad Company, and Union Pacific Railroad Company. The fourth plaintiff is a smaller, regional railroad: Wisconsin Central Limited.² Each plaintiff operates in Wisconsin. The complaint alleged that regulations promulgated under the Federal Rail Safety Act preempted sec. 192.25, and that the statute violated the federal and Wisconsin constitutions. The plaintiffs sought declaratory and injunctive relief. The parties agreed that Wisconsin would not enforce the statute in part pending the outcome of this litigation, or until December 31, 1998. (The parties have not informed us whether they have agreed to continue the stay.) The United Transportation Union (UTU) later intervened as a defendant. The parties filed cross motions for summary judgment, and subsequently stipulated that the plaintiffs would constitutional issues. The district court granted each side summary judgment in part. The court held that sec. 192.25's crew qualification requirements were preempted by federal law but held that its requirement for two-person crews was not. The parties have each appealed parts of the district court's decision.

B. FRSA Preemption

"[T]he Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2. Federal law, therefore, preempts state law. The Supreme Court summarized how the courts are to analyze preemption issues:

In the interest of avoiding unintended encroachment on the authority of states, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption. Thus, pre- emption will not lie unless it is the clear and manifest purpose of Congress. Evidence of pre- emptive purpose is sought in the text and structure of the statute at issue. If the statute contains an express pre-emption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' pre-emptive intent.

CSX Transport, Inc. v. Easterwood, 507 U.S. 658, 663-64 (1993) (citations and internal quotations omitted). Because federal preemption is a question of statutory interpretation, we review this issue de novo.

In response to a perceived need for comprehensive rail safety regulation, Congress passed the Federal Rail Safety Act of 1970 (FRSA), as amended 49 U.S.C. sec. 20101 et seq.³ The purpose of the FRSA was to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. sec. 20101. Thus, the Secretary of Transportation was given broad power to regulate and a mandate to use that power: "The Secretary of Transportation, as necessary, shall prescribe regulations and issue orders for every area of railroad safety." 49 U.S.C. sec. 20103. The Secretary regulates rail safety through the also advanced the goal of national uniformity of regulation because one of its provisions expressly preempts state laws regulating rail safety. 49 U.S.C. sec. 20106. Because the FRSA contains an express preemption provision, our task principally is to apply the provision according to its terms. Section 20106 provides:

Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A state may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the state requirement. A state may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation or order--

(1) is necessary to eliminate or reduce an essentially local safety hazard;

(2) is not incompatible with a law, regulation, or order of the United States Government; and

(3) does not unreasonably burden interstate commerce.

Under this scheme, then, state regulations can fill gaps where the Secretary has not yet regulated, and it can respond to safety concerns of a local rather than national character. Wisconsin does not justify sec. 192.25 as a response to a local safety hazard, so the precise issue before us is whether the Secretary "prescribe[d] a regulation or issue[d] an order covering the subject matter" of sec. 192.25. This issue requires us to answer three sub-issues: What is the "subject matter" of the state requirement? What action by the Secretary amounts to issuing an "order"? ("Prescrib[ing] a regulation" is a clear enough term.) When does such an order or regulation "cover" the subject matter of a state requirement?

The third question is the most easily answered because in Easterwood the Supreme Court thoroughly analyzed when FRA regulations "cover" the subject matter of a state requirement. Noting that "cover" was a somewhat restrictive term, the Court held that "[the party asserting preemption] must establish more than that [the regulations] . . pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." 507 U.S. at 664-65 (citations omitted). Importantly, preemption does not depend on a single federal regulation itself covering the subject matter of ...