Wabash & Western Ry. v. City of Kendallville, Ind.

• Decision Date: 01 December 1998
• Docket Number: No. 1:98-CV-50.,1:98-CV-50.
• Citation: 29 F.Supp.2d 948
• Parties: WABASH & WESTERN RAILWAY CO. d/b/a Michigan Southern Railroad, a Corporation, Plaintiff, v. The CITY OF KENDALLVILLE, INDIANA, a Municipal Corporation, Defendant.
• Court: U.S. District Court — Northern District of Indiana

29 F.Supp.2d 948

WABASH & WESTERN RAILWAY CO. d/b/a Michigan Southern Railroad, a Corporation, Plaintiff, v. The CITY OF KENDALLVILLE, INDIANA, a Municipal Corporation, Defendant.

No. 1:98-CV-50.

United States District Court, N.D. Indiana, Fort Wayne Division.

December 1, 1998.

John C. Theisen, Barnes and Thornburg, Fort Wayne, IN, for Wabash & Western Ry. Co.

Michael M. Yoder, Kendallville, IN, Jeffrey S. Arnold, Yoder Law Office, Kendallville, IN, for City of Kendallville, Indiana.

MEMORANDUM OF DECISION AND ORDER

WILLIAM C. LEE, Chief Judge.

I. INTRODUCTION

This matter is before the Court on the motion for summary judgment filed by the Plaintiff, Wabash & Western Railway Co. d/b/a Michigan Southern Railroad ("MSR"), on May 4, 1998. The Defendants, The City of Kendallville, Indiana ("the City") responded on May 21, 1998, and MSR replied on May 28, 1998. The Court heard oral argument on the motion on July 9, 1998, and subsequently ordered the parties to file a stipulation of facts and supplemental briefs. MSR filed a supplemental memorandum in support on August 10, 1998, and the City filed a supplemental memorandum in opposition on August 25, 1998, but due to reasons that are apparently beyond the control of the parties they cannot agree to a set of stipulated facts. Each party filed a separate set of proposed stipulated facts on September 15, 1998, and the motion is ripe for review. For the reasons hereinafter provided, the motion will be DENIED.

II. FACTUAL BACKGROUND¹

MSR is an Iowa corporation authorized to do business in Indiana as a common carrier railroad under the name Michigan Southern Railroad, and the City is an Indiana municipal corporation. MSR controls and operates a section of railroad that runs through the City's corporate limits, and believes that it leases and has an agreement to purchase a "railroad right of way" that generally extends fifty (50) feet on either side from the center of its main track through the City. According to an enhanced aerial photograph provided by the City, the track extends approximately 4,000 feet through the City, and MSR's right of way along the track varies from approximately 66 to 100 feet in width.

The dispute in this case centers on the City's attempts to enforce City General Ordinance No. 691 ("the Ordinance"), which regulates weed growth in the City. The Ordinance reads in pertinent part:

That whenever it shall be determined that any owner of real estate within the corporate limits of the City of Kendallville, Indiana, has allowed his lawn or real estate to be grown up with weeds or other rank vegetation, then the ... City of Kendallville shall have served ... a five (5) day written notice to remove said weeds or other rank vegetation.... If the owner fails to remove said weeds or rank vegetation within said five (5) day period, the City of Kendallville may remove the weeds and rank vegetation and the ... City shall make a certified statement of the actual cost incurred by the City in the removal and a statement shall be delivered to the owner of the real estate ... and the owner shall have not more than ten (10) days in which to pay the amount to the ... City of Kendallville.

The City has attempted to enforce the Ordinance against MSR by cutting or spraying weeds and undergrowth that have grown along the MSR's right of way through the City and charging the costs to MSR. MSR subsequently brought this action to permanently enjoin the City from enforcing the Ordinance, and to obtain a declaratory judgment that the Ordinance is pre-empted by the federal regulations promulgated by the Federal Railroad Administration ("FRA") pursuant to the Federal Railroad Safety Act of 1970, 49 U.S.C. § 20101, et seq. as amended ("FRSA").²

III. STANDARD OF REVIEW

The Court will grant summary judgment only when "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). We do not weigh the evidence submitted by the parties, or determine the truth of asserted matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, we view all facts and draw all reasonable inferences in the light most favorable to the non-moving party. Vanasco v. National-Louis Univ., 137 F.3d 962, 965 (7th Cir.1998). "If no reasonable jury could find for the party opposing the motion, it must be granted." Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 931 (7th Cir.1995).

IV. DISCUSSION

A. Federal Preemption and the FRSA

The supremacy clause of the United States Constitution provides that the Constitution and valid federal laws are "the supreme law of the land." U.S. CONST. art, VI, cl. 2. Thus, where a state statute or municipal ordinance conflicts with, or frustrates, federal law, the state law or municipal ordinance must give way. E.g., Burlington Northern and Santa Fe Ry. Co. v. Doyle, 24 F.Supp.2d 928, 933-34, 1998 WL 775307, at *5 (E.D.Wis. Oct. 28, 1998) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)); see generally DeHart v. Town of Austin, Indiana, 39 F.3d 718, 721 (7th Cir.1994). While pre-emption may be effectuated by congressional statutes or federal regulations promulgated pursuant to statutory authorization, DeHart, 39 F.3d at 721 (citing Louisiana Public Service Com'n v. FCC, 476 U.S. 355, 368-369, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986)), there is a presumption against federal pre-emption of state or local law. E.g., Thiele v. Norfolk & Western Ry. Co., 68 F.3d 179, 181 (7th Cir.1995) (citing Easterwood, 507 U.S. at 668, 113 S.Ct. 1732). "Thus, preemption will not lie unless it is the `clear and manifest purpose of Congress.'" Easterwood, 507 U.S. at 664, 113 S.Ct. 1732 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). "The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives." Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963).

The FRSA does contain a specific preemption clause, which reads:

Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order —

(1) is necessary to eliminate or reduce an essentially local safety hazard;

(2) is not incompatible with a law, regulation, or order of the United States Government; and

(3) does not unreasonably burden interstate commerce.

49 U.S.C. § 20106 (emphasis added). Courts have consistently interpreted this clause as a declaration of Congressional intent to preempt state and local law in the area of railroad safety. E.g., Consolidated Rail Corp. v. Smith, 664 F.Supp. 1228, 1236 (N.D.Ind. 1987). However, the test of whether a state or local regulation "covers the same subject matter" as a federal regulation promulgated pursuant to the FRSA is a stringent one:

[t]o prevail on the claim that the regulations have pre-emptive effect, petitioner must establish more than that they "touch upon" or "relate to" that subject matter, for "covering" is a more restrictive term which indicates that pre-emption may lie only if the federal regulations substantially subsume the subject matter of the relevant state law. The term "covering" is in turn employed within a provision that displays considerable solicitude for state law in that its express pre-emption clause is both prefaced by and succeeded by express saving clauses.

Easterwood, 507 U.S. at 664-65, 113 S.Ct. 1732 (internal citations omitted); see also Southern Pacific, 9 F.3d at 812 (recognizing that under Easterwood the § 20106 pre-emption standard is not easily met).

Turning back to the specifics of this case, MSR correctly points out that the FRA has, pursuant to its authority under the FRSA, promulgated a regulation that expressly pertains to vegetation:

Vegetation on railroad property which is on or immediately adjacent to roadbed shall be controlled so that it does not —

(a) Become a fire hazard to track-carrying structures;

(b) Obstruct visibility of railroad signs and signals:

(1) Along the right-of-way, and

(2) At highway railroad crossings;

(This paragraph (b)(2) is applicable September 21, 1999.)

(c) Interfere with railroad employees performing normal trackside duties (d) Prevent proper functioning of signal and communication lines; or

(e) Prevent railroad employees from visually inspecting moving equipment from their normal duty stations.

49 C.F.R. § 213.37 (1998) (emphasis added); see also 49 C.F.R. § 213.33 ("[§ 213.37] prescribes minimum requirements for roadbed and areas immediately adjacent to roadbed.") MSR takes the position that this regulation pre-empts all state and local laws pertaining to vegetation control within the railroad's entire right of way.³ The City, on the other hand, acknowledges that the regulation may pre-empt the Ordinance at least as to the areas on or adjacent to the roadbed, but argues that the regulation does not pre-empt enforcement of the Ordinance against MSR in areas beyond the roadbed.

B. Analysis

The legal question before the Court is simple: Does the Ordinance cover the same subject matter as 49 C.F.R. § 213.37?⁴ The answer appears to be: Partially. The Fifth Circuit...