People v. Burlington N. Santa FE R.R.

Citation209 Cal.App.4th 1513,148 Cal.Rptr.3d 243
Decision Date16 October 2012
Docket NumberNo. A133559.,A133559.
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. BURLINGTON NORTHERN SANTA FE RAILROAD, Defendant and Appellant.

209 Cal.App.4th 1513
148 Cal.Rptr.3d 243

2012 Daily Journal D.A.R. 14,307

The PEOPLE, Plaintiff and Respondent,

No. A133559.

Court of Appeal, First District, Division 5, California.

Oct. 16, 2012.

See 7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 8 et seq.


California Public Utilities Commission general order No. 135.

[148 Cal.Rptr.3d 244]

Randy Riddle, Richmond City Attorney, Trisha A. Aljoe, Special Counsel; Moscone Emblidge & Sater, G. Scott Emblidge and Sylvia M. Sokol for Plaintiff and Respondent.

Latham & Watkins, Karl S. Lytz, Andrea M. Hogan and C. Genevieve Jenkins, San Francisco, for Defendant and Appellant.


[209 Cal.App.4th 1516]General order No. 135 of the California Public Utilities Commission (PUC) regulates the length of time a stopped railroad train may block public grade crossings. Appellant Burlington Northern Santa Fe Railroad (BNSF) was convicted, after a bench trial, of a misdemeanor violation of that order. (Pub.Util.Code, § 2110.) 1 BNSF appeals the conviction.

The question we address is whether the PUC general order on which the conviction is based is preempted by either the Interstate Commerce Commission Termination Act (ICCTA; 49 U.S.C. § 10101 et seq.) or the [209 Cal.App.4th 1517]Federal Railroad Safety Act (FRSA; 49 U.S.C. § 20101 et seq.). The trial court found the order not to be preempted by either the ICCTA or the FRSA. We conclude that PUC general order No. 135 is preempted by federal law and, accordingly, reverse the judgment.

[148 Cal.Rptr.3d 245]

I. Statutory Background

Congress has exercised “broad regulatory authority” over railroads for more than a century. ( Island Park, LLC v. CSX Transp. (2d Cir.2009) 559 F.3d 96, 102( Island Park ).) The Interstate Commerce Commission, created by the Interstate Commerce Act in 1887, was abolished by the ICCTA in January 1996, and the Surface Transportation Board (STB) was created in its stead. ( Island Park, at p. 102;Friberg v. Kansas City Southern Ry. Co. (5th Cir.2001) 267 F.3d 439, 442( Friberg ).) The purpose of the ICCTA was to “eliminate many outdated, unnecessary, and burdensome regulatory requirements and restrictions on the rail industry.” (Sen.Rep. No. 104–176, 1st Sess., p. 6 (1995).) To that end, the ICCTA includes a broadly worded express preemption provision. It provides: “The jurisdiction of the [STB] over—[¶] (1) transportation by rail carriers, and the remedies provided in this part [ (49 U.S.C. § 10101 et seq.) ] with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and [¶] (2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, [¶] is exclusive. Except 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), italics added.)

The FRSA was enacted, in 1970, “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” (49 U.S.C. § 20101; Island Park, supra, 559 F.3d at p. 106.) Thereunder, Congress authorized the Secretary of Transportation to “prescribe regulations and issue orders for every area of railroad safety.” (49 U.S.C. § 20103(a).) The Secretary delegated the authority to “[c]arry out the[se] functions” to the Federal Railroad Administration. (49 C.F.R. § 1.89(a).) The FRSA contains a more narrow preemption provision. It provides: “National uniformity of regulation.—(1) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. [¶] (2) A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation ... prescribes a regulation or issues an order covering the subject matter of the State requirement. A State [209 Cal.App.4th 1518]may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order—[¶] (A) is necessary to eliminate or reduce an essentially local safety or security hazard; [¶] (B) is not incompatible with a law, regulation, or order of the United States Government; and [¶] (C) does not unreasonably burden interstate commerce.” (49 U.S.C. § 20106(a), italics added.) The U.S. Supreme Court has held that a “covering” federal regulation must do more than merely “ ‘touch upon’ or ‘relate to’ ” the same subject matter as state law. “[P]re-emption [under the FRSA] will lie only if the federal regulations substantially subsume the subject matter of the relevant state law.” ( CSX Transp. v. Easterwood (1993) 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387( Easterwood ).)

The state law at issue in this case is PUC general order No. 135, which is titled: “Regulations Governing the Occupancy of Public Grade Crossings by Railroads.” General order No. 135 states: “IT IS ORDERED ... that each railroad corporation

[148 Cal.Rptr.3d 246]

operating in the state of California shall observe the following regulations in conducting operations on and across public grade crossings: [¶] 1. TRAIN MOVEMENTS—Except as provided in Paragraph 5, a public grade crossing which is blocked by a stopped train ... must be opened within 10 minutes, unless no vehicle or pedestrian is waiting at the crossing.... [¶] ... [¶] 4. There are no time restrictions for crossing occupancy for a moving train continuing in the same direction. [¶] 5. These time limit provisions shall not apply to any blocking resulting from compliance with State and Federal laws and regulations, terrain and physical conditions, adverse weather conditions, conditions rendering the roadbed or track structure unsafe, mechanical failures, train accidents, or other occurrences over which the railroad has no control, except that such crossing shall be cleared with reasonable dispatch. [¶] ... [¶] 10. The district attorney of the proper county or the city attorney designated to prosecute misdemeanors in his stead shall prosecute noncompliance with this General Order by means of a misdemeanor complaint issued against the railroad corporation in accordance with Chapter 11, Part I, Division I of the Public Utilities Code.”

II. Factual and Procedural Background

BNSF is a railroad company engaged in shipping industrial and consumer products across 26 states. On February 6, 2009, BNSF was charged, by the City of Richmond acting on behalf of the People, with two misdemeanor violations of general order No. 135. In relevant part, the complaint alleged that, on December 16, 2008, BNSF violated that order by blocking intersections at Harbor Way South and Marina Way South, in Richmond, for greater [209 Cal.App.4th 1519]than 20 minutes.2 BNSF filed a demurrer, arguing that the FRSA and the ICCTA preempted general order No. 135. The demurrer was overruled on the ground that factual development was necessary. BNSF's petition for writ of mandate, challenging the trial court's decision on the demurrer, was denied.

Both parties waived the right to a trial by jury, and the following evidence was presented during the bench trial. The Union Pacific main line (UP Line) brings trains from the north and east, through Richmond, to Oakland and points beyond. Another track, controlled by BNSF, runs off the UP Line, running through a more western part of Richmond. It includes a rail yard called the “Richmond Yard,” which is operated by BNSF. This track carries cargo trains from various points heading to the Port of Oakland. Another track, called the “Siberia Lead,” connects the Richmond Yard to the UP Line. Trains from the Siberia Lead enter the UP Line at the “Stege Intersection.”

BNSF needs permission from Union Pacific in order for its trains to enter the UP Line, which is obtained by radioing to a Union Pacific dispatcher. The dispatcher only gives clearance if it is expected that the train will be able to actually enter the UP Line, but intervening events can make that impossible. Accordingly, there is a signal light on the rail line at the Stege Intersection that is sometimes red when the train arrives, even though clearance was given by Union Pacific. This occurs about 15 percent of the time and delays can last between a few minutes and two hours.

On the morning of December 16, 2008, there were two BNSF trains trying to travel from the Richmond Yard to the West Oakland Yard—BNSF Train 842 and BNSF Train 5400. The first train, Train

[148 Cal.Rptr.3d 247]

842, received clearance from the Union Pacific dispatcher to proceed to the Stege Intersection at 9:48 a.m. Train 5400 was aware that there was another train ahead of it, but asked permission to follow Train 842 and “wait our turn.” At 9:56 a.m., the Union Pacific dispatcher gave Train 5400 permission to follow Train 842 to the Stege Intersection. Train 5400 also received clearance to proceed from the Richmond Yard, the West Oakland Yard, and the Richmond Pacific Railroad, which conducts operations on the Siberia Lead.

At 10:04 a.m., Train 842 arrived at the Stege Intersection and found a red light. Train 842 waited. It was not blocking any crossings because it was about 5,000 feet long and the distance from the intersection to the nearest crossing was 5,200 feet. Meanwhile, shortly after 9:56 a.m., Train 5400 left the Richmond Yard and then stopped on the Siberia Lead to change a track switch to take the train in the proper direction. When Train 5400 stopped, its conductor first saw that Train 842 was stopped at the Stege Intersection. [209...

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