Emerson v. Kansas City Southern Ry. Co.

• Decision Date: 24 September 2007
• Docket Number: No. 06-7081.,06-7081.
• Citation: 503 F.3d 1126
• Parties: Larry EMERSON; Stephanie Emerson, Plaintiffs, and Revocable Trust of Charley L. Davis; Revocable Trust of Annie O. Davis, Plaintiffs-Appellants, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

503 F.3d 1126

Larry EMERSON; Stephanie Emerson, Plaintiffs, and Revocable Trust of Charley L. Davis; Revocable Trust of Annie O. Davis, Plaintiffs-Appellants, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellee.

No. 06-7081.

United States Court of Appeals, Tenth Circuit.

September 24, 2007.

D. Kenyon Williams, Jr., Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., for Plaintiffs-Appellants.

W.G. "Gil" Steidley, Jr., Steidley & Neal, P.L.L.C. (C. Ryan Norton, Rex M. Terry, Hardin, Jesson & Terry, PLC, with him on the brief), for Defendant-Appellee.

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and McCONNELL, Circuit Judge.

McCONNELL, Circuit Judge.

This case concerns the preemptive scope of the Interstate Commerce Commission Termination Act of 1995 (ICCTA). Kansas City Southern Railway Company (Railroad), the defendant below, argued to the district court that the ICCTA preempts the state tort claims brought by the plaintiffs, who own land adjacent to the Railroad's track in Sequoyah County, Oklahoma. The district court accepted this argument and granted summary judgment in the Railroad's favor. After reviewing the record, however, we conclude that the ICCTA does not expressly preempt the plaintiffs' tort claims. We also conclude that there were insufficient facts in the record for the district court to determine whether the ICCTA impliedly preempts the plaintiffs' claims. We therefore REVERSE the judgment of the district court.¹

I.

The plaintiff landowners in this case are the Revocable Trust of Charley L. Davis and the Revocable Trust of Annie O. Davis (Landowners). Their property abuts a floodplain drainage ditch that is adjacent to a portion of the Railroad's track. The ditch itself contains a culvert system. The Landowners allege that when the Railroad replaced old, deteriorated wooden railroad ties, it regularly discarded the used rails in the drainage ditch. They also allege that the Railroad failed to cut the vegetation in the drainage ditch on a regular basis, and that when it cut the vegetation, it disposed of the debris in the right-of-way. The Landowners claim that the improperly discarded railroad ties and vegetation debris impeded the flow of water through the drainage ditch and culvert system adjacent to their properties. This, in turn, allegedly resulted in a gradual build-up of sediment in the drainage ditch and in the flooding of the Landowners' property on a number of occasions. These incidents led the Landowners to sue the Railroad in Oklahoma state court, alleging state torts of trespass, unjust enrichment, public and private nuisance, negligence, and negligence per se. They sought actual and punitive damages, abatement, remediation, and other relief.

The Railroad removed the case to federal court, invoking the court's diversity jurisdiction. See 28 U.S.C. § 1441(b). It then filed a motion for summary judgment, arguing that the Landowners' state law claims were preempted by the ICCTA, Pub.L. No. 104-88, 109 Stat. 803 (codified at 49 U.S.C. §§ 10101-16106). The district court agreed. It held that "the facts which [were] necessary to evaluate whether federal preemption applies to Plaintiffs' state law claim [were] not in dispute." Appellant's App. 124. The Landowners now appeal. We have jurisdiction under 28 U.S.C. § 1291.

II.

"We review the grant of summary judgment de novo, applying the same legal standard employed by the district court." King v. PA Consulting Group, Inc., 485 F.3d 577, 585 (10th Cir.2007). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard, "`we view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.'" Reinhart v. Lincoln County, 482 F.3d 1225, 1229 (10th Cir.2007) (quoting Terra Venture, Inc. v. JDN Real Estate Overland Park, L.P., 443 F.3d 1240, 1243 (10th Cir.2006)) (brackets omitted).

III.

Congress has the power to pre-empt state law under Article VI of the Constitution, which provides that "the 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. See Choate v. Champion Home Builders Co., 222 F.3d 788, 791 (10th Cir.2000). Because of the supremacy of federal law, "state law that conflicts with federal law is `without effect,'" Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)), be it state common law or statutory law, see Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005) ("Under the Supremacy Clause of the United States Constitution, Congress may preempt state common law as well as state statutory law through federal legislation."); see also Dist. 22 United Mine Workers of Am. v. Utah, 229 F.3d 982, 987 (10th Cir. 2000) (same).

Federal pre-emption of state law may be either express or implied. Choate, 222 F.3d at 792. Express pre-emption occurs when Congress "define[s] explicitly the extent to which its enactments pre-empt state law." Id. Implied preemption comes in two varieties. The first is field pre-emption, which occurs when "the scope of a statute indicates that Congress intended federal law to occupy a field exclusively." Sprietsma v. Mercury Marine, 537 U.S. 51, 64, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002), quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995), quoting English v. General Electric Co. 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). The second is implied conflict pre-emption, which occurs when "it is `impossible for a private party to comply with both state and federal requirements,' or where state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Sprietsma, 537 U.S. at 64, 123 S.Ct. 518, quoting Freightliner, 514 U.S. at 287, 115 S.Ct. 1483, quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). See Choate, 222 F.3d at 792. Whatever its form, pre-emption analysis "starts with the assumption that the historic police powers of the States are not to be superseded by . . . Federal Act unless that is the clear and manifest purpose of Congress. Accordingly, the purpose of Congress is the ultimate touchstone of pre-emption analysis." Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (internal quotation marks, citations, and brackets omitted).

This case involves claims of both express and conflict preemption. See Sprietsma, 537 U.S. at 65, 123 S.Ct. 518 ("Congress' inclusion of an express pre-emption clause `does not bar the ordinary working of conflict pre-emption principles.'") (quoting Geier v. American Honda Motor Co., 529 U.S. 861, 869, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000)) (emphasis in original).

A. Express Preemption

The ICCTA states that "[e]xcept as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law." 49 U.S.C. § 10501(b). Because the ICCTA "contains an express pre-emption clause, our `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.'" Sprietsma, 537 U.S. at 62-63, 123 S.Ct. 518 (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)). The Act defines "transportation" as:

(A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use; and

(B) services related to that movement, including receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, and interchange of passengers and property[.]

Id. § 10102(9)(A)-(B).

While certainly expansive, this definition of "transportation" does not encompass everything touching on railroads. Subsection (A) focuses on physical instrumentalities "related to the movement of passengers or property," and subsection (B) on "services related to that movement." We do not think that the plain language of this statute can be read to include the conduct that the Landowners complain of here — discarding old railroad ties into a wastewater drainage ditch adjacent to the tracks and otherwise failing to maintain that ditch. These acts (or failures to act) are not instrumentalities "of any kind related to the movement of passengers or property" or "services related to that movement." Id. Rather, they are possibly tortious acts committed by a landowner who happens to be a railroad company. Because these acts or omissions are not "transportation" under § 10102(9), the ICCTA does not expressly preempt the generally applicable state common law governing the Railroad's disposal of waste and maintenance of the ditch.

This reading is consistent with other interpretations of the ICCTA's preemptive scope. We look, for instance, to rulings by the Surface Transportation Board, the agency Congress created in the ICCTA, id. § 10102(1), and to which Congress gave "extensive authority in this area," City of Lincoln v. Surface Transp. Bd., 414 F.3d 858, 861 (8th Cir.2005). The STB has exclusive jurisdiction over:

(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating...