Missouri Pacific R. Co. v. Railroad Com'n of Texas

• Decision Date: 27 January 1987
• Docket Number: Civ. No. A-86-CA-406.
• Citation: 653 F. Supp. 617
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, et al. v. RAILROAD COMMISSION OF TEXAS and its members, Hon. James E. Nugent, Hon. Mack Wallace and Hon. Clark Jobe.
• Court: U.S. District Court — Western District of Texas

653 F. Supp. 617

MISSOURI PACIFIC RAILROAD COMPANY, et al. v. RAILROAD COMMISSION OF TEXAS and its members, Hon. James E. Nugent, Hon. Mack Wallace and Hon. Clark Jobe.

Civ. No. A-86-CA-406.

United States District Court, W.D. Texas, Austin Division.

January 27, 1987.

Robert B. Burns, Jr., Karl G. Johnson, Jr., Wilson, Grosenheider & Burns, Austin, Tex., for Missouri Pacific R. Co., Southern Pacific Transp. Co., The Atchison, Topeka and Santa Fe Railway Co., Burlington Northern R. Co., Missouri-Kansas-Texas R. Co., St. Louis-Southwestern Railway Co., Kansas City Southern Railway Co., and, Louisiana and Arkansas Railway Co.

Douglas Fraser, Energy Div./Transp., Austin, Tex., for defendants.

ORDER

NOWLIN, District Judge.

Before the Court is the Plaintiffs' Motion for Partial Summary Judgment. The Court has considered the motion and the response of the Defendants in light of the entire file in this cause, and is of the opinion that the motion is meritorious and must GRANTED.

I. BACKGROUND

In response to the deterioration of railroad tracks, roadbed and safety equipment, Congress enacted the Federal Railroad Safety Act of 1970, Pub.L. No. 91-458, 84 Stat. 971 (1970) (current version at 45 U.S.C. §§ 421-441 (1986)). Congress specifically considered the role states would play in railway safety regulation:

With the exception of industrial or plant railroads the railroad industry has very few local characteristics. Rather in terms of its operations, it has a truly interstate character calling for a uniform body of regulation and enforcement. It is a national system.... To subject a carrier to enforcement before a number of different state administrative and judicial systems in several areas of operation could well result in an undue burden on interstate commerce.

H.R. REP. No. 1194, reprinted in 1970 U.S. CODE CONG. & AD. NEWS 4104, 4110-11. The Federal Railroad Safety Act is specifically designed to promote and regulate safety in all areas of railroad operation 45 U.S.C. §§ 421, 431 (1986). The United States Secretary of Transportation is charged with the duty to prescribe all necessary rules, regulations, orders and standards for all areas of railroad safety. Id. § 431. The Secretary of Transportation has delegated these responsibilities to the Administrator of the Federal Railroad Administration (FRA), a unit of the Department of Transportation. 49 C.F.R. § 1.49(m) (1985).

The Texas Railroad Commission has adopted a series of regulations that address rail safety issues. TEX. R.R. COMM'N, 16 TEX.ADMIN.CODE § 5.616-5.621 (hereinafter cited as 16 T.A.C. § ____). Sections 5.616 and 5.618 require that the railroads file various reports, codes and wayside detector map with the Texas Railroad Commission. Section 5.617 demands that a fire extinguisher and a first aid kit be installed in every caboose and locomotive. Section 5.619 prescribes construction of walkways along tracks, in or adjacent to roadbeds, in yards or terminals, and in other locations frequented by various workmen. Finally, section 5.620 regulates the existence of visual obstructions at public grade crossings. Specifically, section 5.620(b) attempts to regulate vegetation control standards for the roadbed and adjacent area.

These proposed rules were announced by the Railroad Commission on December 6, 1985. Public comments were solicited and received by the commission, but no public hearing was held. The rules were adopted on June 3, 1986 and became effective on June 25, 1986.

On July 22, 1986, the Plaintiff railroads filed the instant complaint for declaratory relief as well as preliminary and permanent injunctive relief. The complaint alleges that the subject regulations are preempted by federal law; constitute an undue burden on interstate commerce and a deprivation of property without due process of law; constitute an unlawful and unauthorized exercise of power under Texas law; and, amount to an arbitrary and capricious action, unsupported by substantial evidence.

The Railroad Commission timely answered, and on October 1, 1986, the Plaintiffs filed their motion for partial summary judgment. Plaintiffs' motion seeks summary judgment on four (4) grounds alleged in their original complaint. They allege that 16 T.A.C. §§ 5.617, 5.619 and 5.620(b) are specifically preempted by federal law and regulation. Specifically, they argue that the FRA has completely occupied the area of regulation addressed by sections 5.619 and 5.620(b). Further, they allege the subject matter of section 5.617 has been totally preempted by the Locomotive Boiler Inspection Act, 45 U.S.C. § 23 (1986). Second, Plaintiffs allege that sections 5.616-5.620 are preempted by 45 U.S.C. § 434, in that they have state-wide application and therefore fail to address a local safety hazard. Third, Plaintiffs argue that 45 U.S.C. § 434 preempts sections 5.619 and 5.620(b) because each creates an undue burden on interstate commerce. Finally, Plaintiffs contend that sections 5.619 and 5.620(b) create an undue burden on interstate commerce outside the context of 45 U.S.C. § 434.

The Defendants' response to Plaintiffs' motion was to be filed with the Court on October 16, 1986. The Defendants, however, filed a Motion for Continuance that specifically plead that the Defendants lacked the requisite knowledge to controvert certain issues by affidavit. Defense counsels' appended affidavit stated that the Defendants needed to take depositions and conduct other discovery before they could fully respond. Plaintiffs opposed the motion and moved for a temporary restraining order noting that the compliance date set forth in the subject regulations was October 25, 1986. The Defendants replied that while the "Commission cannot agree to the Temporary Restraining Order, the Commission does not at this time contest entry of the requested TRO." Thereafter, the Court considered the application in light of the Defendants' response and entered a Temporary Restraining Order on October 23, 1986. The following day the Court granted the Defendants' Motion for Continuance and ordered that Defendants respond to the Plaintiffs' Motion for Partial Summary Judgment on or before November 5, 1986.

The Defendants' response was timely filed and addressed most of the issues raised by Plaintiffs. The record reflects that in preparation of their response the Defendants took no depositions, did not attempt to take depositions, and propounded no discovery to Plaintiffs despite the protestation in their Motion for Continuance. Further, despite an absence of "requisite personal knowledge to support a sworn affidavit," Defendants did submit controverting affidavits.

The Defendants' response consisted of an Opposition to Plaintiffs' Motion for Partial Summary Judgment, and a Motion for Dismissal Under Rules 12(b) and 12(c) and for Summary Judgment. The Defendants' Motion to Dismiss alleges that the Plaintiffs lack standing to bring this action, no case or controversy exists, the action is not ripe for adjudication, no federal question jurisdiction exists, and that Pullman abstention is appropriate in this case. The Court will first address these threshold jurisdictional issues.

II. JURISDICTION

The Plaintiffs' original complaint states that "the jurisdiction of this Court is based upon a federal question, and is invoked pursuant to 28 U.S.C. § 1331 (Supp. 1986), 28 U.S.C. § 2201 (Supp.1985) and 45 U.S.C. § 421-441 (1972 and Supp.1986)." Section 1331 confers original jurisdiction on district courts to adjudicate "all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331 (1986). Plaintiffs' complaint in this case invokes the Supremacy Clause and the Commerce Clause of the United States Constitution, and specific provisions of the Federal Railroad Safety Act and the Locomotive Boiler Inspection Act as bases for their claims.

Parties that assert federal question jurisdiction need not prove in advance that they will ultimately prevail on the merits of their federal claims. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). "Rather, the party asserting jurisdiction need only advance plausible, colorable claims that `arise under' federal law." Rollins Environmental Services, Inc. v. Parish of St. James, 775 F.2d 627, 631 (5th Cir.1985). In short, there must be a case or controversy. A case or controversy exists when "the conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract."¹Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945); e.g., KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922, 927 (5th Cir.1983). The imminence of the harm, the adversariness of the parties' positions, and the reality of injury to the Plaintiffs are all factors to be considered in determining whether a question is abstract. KVUE, 709 F.2d at 927. An action, however, may arise under federal law when "in order for the Plaintiff to secure the relief sought he will be obliged to establish both the correctness and the applicability to his case of a proposition of federal law." Franchise Tax Board v. Construction Laborers Trust, 463 U.S. 1, 9, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). In fact, the Supreme Court has stated that a "plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is preempted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 2899 n. 14, 77 L.Ed.2d 490 (1983); Braniff International, Inc. v. Florida Public Service Comm'n, 576 F.2d 1100, 1105 (5th Cir. 1978).

In order to avoid dismissal under FED.R.CIV.P. 12, the issue presented...