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

• Decision Date: 30 September 1986
• Docket Number: No. 85-1683,85-1683
• Citation: 802 F.2d 994
• Parties: 21 Fed. R. Evid. Serv. 794 BURLINGTON NORTHERN RAILROAD COMPANY, Appellant, v. STATE OF NEBRASKA; the Nebraska Public Service Commission, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 994

802 F.2d 994

21 Fed. R. Evid. Serv. 794

BURLINGTON NORTHERN RAILROAD COMPANY, Appellant, v. STATE OF NEBRASKA; the Nebraska Public Service Commission, Appellees.

No. 85-1683.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1986.

Decided Sept. 30, 1986.

Richard A. Knudsen, Lincoln, Neb., for appellant.

John Boehm, Asst. Atty. Gen., Lincoln, Neb., for appellees.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and HARRIS, ^* Senior District Judge.

JOHN R. GIBSON, Circuit Judge.

Burlington Northern Railroad Company appeals from an order of the district court upholding the constitutionality of Nebraska's statute requiring that the last car on any train over 1,000 feet long operating in the state be a manned caboose. Neb.Rev.Stat. Sec. 74-5,100 (Cum.Supp.1984) (LB 179). Burlington Northern sought to have the statute declared unconstitutional and its enforcement enjoined on the basis that it was preempted by federal legislation, exceeded the state's police power, unreasonably burdened interstate commerce, and unconstitutionally impaired a contractual right. On appeal, Burlington Northern argues that the district court (1) improperly failed to balance the burden imposed on interstate commerce against the state's asserted safety interest, (2) improperly excluded evidence tending to refute the existence of a safety interest, and (3) erred in holding that the statute did not violate the Contract Clause of the United States Constitution. We affirm the district court's holding that the statute does not violate the Contract Clause. We conclude, however, that the district court erred in failing to balance the statute's impact on interstate commerce against the state's asserted safety objectives. We also conclude that the district court erred in excluding lay opinion testimony on the safety issue. We therefore remand this case for further proceedings consistent with this opinion.

On October 15, 1982, Burlington Northern and the United Transportation Union entered into a collectively bargained contract in which Burlington Northern was authorized to seek, with the Union's consent or through an arbitration award, removal of cabooses from some trains. ¹ Subsequently, Burlington Northern notified the Union of its intent to remove cabooses from a number of trains, some of which operated in Nebraska. The Union objected and Burlington Northern sought and obtained an arbitration award authorizing the removal.

On March 28, 1983, Nebraska enacted LB 179, which imposed the caboose requirement. ² After this litigation commenced, LB 179 was amended to gradually increase the length of the trains excepted from its requirements and ultimately, effective April 15, 1988, to end the manned caboose requirement. Violation of LB 179 is a misdemeanor. ³

The district court made detailed findings regarding the safety interest promoted by LB 179. Three findings, it concluded, disposed of the question whether LB 179 unconstitutionally burdened interstate commerce. First, the court found that the safety justification for the law was not slight, problematical, or illusory. Second, the court found that, reviewing either the actual legislative purpose, as apparent from the statute's legislative history, or the reasons advanced at trial, the state acted to further a legitimate public safety interest. Third, the court found that the exceptions to LB 179 did not so weaken the statute as to preclude the special deference with which state safety legislation is to be regarded. Burlington Northern Railroad Company v. State of Nebraska, CV83-L-423, slip op. at 24 (D.Neb. May 10, 1985).

The district court found that the Nebraska legislature enacted LB 179 in response to the 1982 collective bargaining agreement, out of concern that that agreement did not adequately protect the public safety interest in railroad operations. Id. at 25. The legislative debate prior to passage of the statute, the court found, demonstrates that this safety interest was the sole impetus for LB 179. Id. at 24. The Act's supporters stressed the unique nature of the safety concerns in Nebraska: essentially that Nebraska's topography resulted in longer trains travelling frequently in open country where fires and accidents, if not detected by a caboose crew, could go undetected for a long time, resulting in unnecessary loss of life and property. Id. at 25. The Bill's exception from its caboose requirement for trains under 1,000 feet long reflected the legislators' conclusion that an engine crew could see only that length from the front of the train. Thus, the court concluded, regardless of the accuracy of the factual basis prompting their action, the legislature acted upon a valid concern about a matter of public interest by adopting a measure that facially bore a rational relationship to perceived problems.

The district court next evaluated three areas in which the state believed manned cabooses would advance public safety. First, the state was interested in preventing right-of-way fires; railroading was the second leading cause of right-of-way fires in Nebraska from 1978 to 1982. Slip op. at 30. Right-of-way fires resulted largely from defective or malfunctioning equipment, glowing carbon particles expelled through locomotive exhaust systems, and signal flares. Id. The state's evidence regarding the role of manned cabooses in detecting, preventing, or minimizing the damage caused by right-of-way fires was largely anecdotal. Id. The court found that the role of manned cabooses in detecting or preventing right-of-way fires was, in all likelihood, minimal and a significant amount of these problems could be detected through mechanical means. Id. at 31. The court, however, took judicial notice of the fact that much of rural Nebraska is lightly populated and many of its roads and highways are lightly travelled. On these routes, the court concluded, it is more likely that manned cabooses are required to watch for right-of-way fires. Id.

A second area of specific legislative concern was rail-highway crossing accidents. The court found that rail-highway crossing accidents are the greatest causes of death and serious injury in railroad operations. The legislature felt that caboose crews are in a position to spot accidents occurring toward the rear portion of long trains, out of the view of the locomotive crew. Again, there was anecdotal testimony regarding incidents in which the caboose crew was instrumental in spotting and, in some instances, preventing some accidents. Nonetheless, the court noted "[t]he relative infrequency of crossing accidents in which caboose crews play an indispensable role." Id. at 32. The court concluded, however, that the caboose crew could perform some safety functions in these cases, even though the impact may be statistically small. Id.

The third area of specific legislative concern was train derailments causing personal and property injury. The caboose crew's role in derailments consists largely of spotting defective equipment and other mechanical problems which usually cannot be spotted by the locomotive crew. Id. at 37. The court evaluated in detail the mechanical means available to detect many of the problems which could lead to derailment. The court acknowledged that these changes significantly reduce the role played by caboose crews. Nonetheless, the court concluded, the caboose crew supplements the mechanical detectors and other innovations and thus provides a small safety benefit. Id. at 46.

The court concluded its analysis with the assessment that "the total effect of the Nebraska caboose law as a safety measure is not slight, dubious or problematic or illusory. No matter how hefty the law's incidental burden on commerce may be, its safety purposes are furthered substantially enough that it is not vulnerable to a commerce clause challenge." Id. at 51. The district court thus concluded that, for a state statute which advances a nonillusory safety purpose, the Commerce Clause inquiry ends without any consideration of the law's effect on interstate commerce. In so concluding, the court relied heavily on its reading of the three opinions in Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981).

I.

The Commerce Clause of the United States Constitution authorizes Congress to "regulate commerce * * * among the several states * * *." U.S. Const. art. 1 Sec. 8. Where Congress exercises its power pursuant to the Commerce Clause, inconsistent state legislation affecting commerce is preempted. The Commerce Clause long has been held to be self-executing, Southern Pacific Co. v. Arizona, 325 U.S. 761, 769, 65 S.Ct. 1515, 1520, 89 L.Ed. 1915 (1945). Thus, even in the absence of preemptive legislation, it bars state regulations that unduly burden interstate commerce. The Commerce Clause "affords one protection from state legislation inimical to the national commerce, and * * * where Congress has not acted, this Court, and not the state legislature, is under the commerce clause, the final arbiter of competing demands of state and national interests." Id. at 769, 65 S.Ct. at 1520; see also, Raymond Motor Transportation Inc. v. Rice, 434 U.S. 429, 440, 98 S.Ct. 787, 793, 54 L.Ed.2d 664 (1978); Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 350, 97 S.Ct. 2434, 2445, 53 L.Ed.2d 383 (1977). This self-executing feature of the Commerce Clause is frequently referred to as the dormant Commerce Clause.

Not all state legislation which incidentally burdens commerce violates the dormant Commerce Clause. The general criteria by which the validity of state regulations affecting commerce is evaluated is succinctly stated in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970):

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the...