City of Covington, Ky. v. Chesapeake & Ohio Ry.

• Decision Date: 03 April 1989
• Docket Number: Civ. A. No. 88-21.
• Citation: 708 F. Supp. 806
• Court: U.S. District Court — Eastern District of Kentucky
• Parties: CITY OF COVINGTON, KENTUCKY, Plaintiff, v. The CHESAPEAKE & OHIO RAILWAY CO., Defendant.

708 F. Supp. 806

CITY OF COVINGTON, KENTUCKY, Plaintiff, v. The CHESAPEAKE & OHIO RAILWAY CO., Defendant.

Civ. A. No. 88-21.

United States District Court, E.D. Kentucky, Covington Division.

April 3, 1989.

Rita Ferguson, Edmondson, Condit & Calvert, Covington, Ky., for plaintiff.

Gerald Dusing, Adams, Brooking, Stepner, Woltermann & Dusing, Florence, Ky., for defendant.

OPINION AND ORDER

BERTELSMAN, District Judge.

This opinion addresses an action by the City of Covington, Kentucky (hereinafter City) for a declaration of its rights under City Ordinance No. O/R 31-87 (January 12, 1988), enacted pursuant to power delegated to the City by KRS 96.050(6), to regulate the speed of trains within the City limits. The City contends that the speed regulation is not preempted by the Railway Safety Act, 45 U.S.C. § 421 et seq. (hereinafter FSRA).

This matter is presently before the court on defendant's motion for summary judgment.

FACTS

In January 1988, the City enacted Ordinance No. O/R 31-87 limiting the speed of trains to 25 m.p.h. within the City limits.

The City relies upon the authority of KRS 96.050(6) which expressly delegates power to a city to regulate train speed within its boundaries, as well as upon more general home rule statutes of the state.

In its complaint for declaratory judgment and damages against the defendant, The Chesapeake & Ohio Railway Co. (hereinafter C & O), filed in the Kenton County, Kentucky Circuit Court on January 27, 1988, the City asserted that the defendant had stated to City officials that the Ordinance would not pass constitutional scrutiny. Defendant filed a petition to remove the case to this court on February 10, 1988, and the court recognized that it had diversity jurisdiction on July 18, 1988.

The City essentially argues that the right to regulate the speed of trains within city limits for public health and safety is within the police power expressly delegated by the state in KRS 96.050(6) and other home rule statutes. It further argues that since the FSRA, 45 U.S.C. § 421 et seq., does not expressly regulate train speeds to accommodate safety concerns in cities, but rather undertakes only to prescribe maximum speeds over prescribed classes of track, 49 C.F.R. § 9(a) (1986), it does not preempt city ordinances specifically enacted to relieve local safety concerns.

C & O argues that the FSRA preempts any local safety law which is incompatible with federal regulations and which creates an undue burden on interstate commerce.

The issue in this matter is, whether the Railway Safety Act preempts the City Ordinance, notwithstanding that the City was empowered to regulate the speed of trains within its boundaries by the Commonwealth.

CONCLUSION

The Railway Safety Act preempts the City Ordinance since it is in conflict with the federal regulation of train speeds in 49 C.F.R. § 213.9(a)(1986). KRS 96.050(6) improperly delegates power to the cities to regulate train speeds and is void.

ANALYSIS

Congress may within certain constitutional limits preempt state and local governments' legislative authority in a given subject area. Wardair Canada v. Florida Dept. of Revenue, 477 U.S. 1, 106 S.Ct. 2369, 91 L.Ed.2d 1 (1986). Congressional intent determines whether federal law preempts a particular state or local law.

Even if Congress has not expressly displaced state law in a given subject area, state law will be adjudged preempted nonetheless if it stands in "actual conflict" with federal law. California Coastal Com'n v. Granite Rock Co., 480 U.S. 572, 107 S.Ct. 1419, 1425, 94 L.Ed.2d 577 (1987); Consolidated Rail Corp. v. Smith, 664 F.Supp. 1228, 1230 n. 2 (N.D.Ind.1987); Chesapeake & Ohio Ry. Co. v. City of Bridgman, 669 F.Supp. 823, 825 (W.D.Mich.1987).

Moreover, the law of implied preemption provides that "where failure of ... federal officials affirmatively to exercise their full authority takes on the character of a ruling that no ... state regulation is appropriate or approved pursuant to the policy of a federal statute, states are not permitted to use their police power to enact such a regulation." Missouri Pacific R.R. v. Railroad Com'n of Texas, 850 F.2d 264, 267 (5th Cir.1988), (citing Ray v. Atlantic Richfield Co., 435 U.S. 151, 179, 98 S.Ct. 988, 1005, 55 L.Ed.2d 179 (1978)).

The authorities are clear that the Secretary of Transportation is considered to have intended to regulate train speeds exclusively by "specifically designating permissible operating speeds for various classes of track" in the FSRA implementing regulations (49 C.F.R. § 213.9(A)). Thus, these regulations preclude "more stringent local ordinances regulating speed which cannot co-exist with the federal regulations." Southern Pacific Transportation Co. v. Town of Baldwin, 685 F.Supp. 601, 603 (W.D.La.1987) (city established 35 m.p.h. speed limit for trains within city limits); Consolidated Rail Corp. v. Smith, 664 F.Supp. at 1236 (same). These cases do not make the distinction between "regulating the speed of trains" and "regulating the speed of trains on specified classes of track" that plaintiff urges. To regulate one is to regulate the other.

The City urges, however, that there are two specific "exceptions" provided for in § 434 of the FSRA. Under the last two sentences of § 434, a state may adopt railway safety rules or continue such rules in force (1) until the Secretary of Transportation enacts a rule covering the same subject matter, or (2) when necessary to reduce a local safety hazard, if the state rule is not incompatible with federal law or interstate commerce.

The first exception has been covered supra. 49 C.F.R. § 213.9(a) has been interpreted by the courts as the "rule covering the same subject matters." Consolidated Rail Corp., 664 F.Supp. at 1236.

The second exception does not intend, by the weight of authority, to authorize each municipality within a state to establish speed limits for trains as they pass through their respective city limits. Moreover, to the extent that KRS 96.050(6) or any other home rule statute is read to permit such action, it is...