Superior Court of Contra Costa County, No. 301322-4, Edward G. Weil, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PUBLICATION
(Contra Costa County Super. Ct. No. 301322-4)
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.)*fn1 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 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.
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 The purpose of the ICCTA was to "eliminate many outdated, unnecessary, and burdensome regulatory requirements and restrictions on the rail industry."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 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 (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 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 than 20 minutes.*fn2 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 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. Because Train 5400 was about 5,000 feet long, it was blocking two grade crossings, one at Marina Way South and one at Harbor Way South. The conductor radioed for a van to pick him up to take him to the rear of the train, so that he could "back up" the train. The van did not arrive for 25 minutes. Eventually, around 11:29 a.m., the conductor arrived at the rear of the train and the blockage was cleared.
After posttrial briefing, the trial court found BNSF guilty of violating general order No. 135. In its special verdict on issues of fact/order resolving issues of law (special verdict), the trial court wrote: "[BNSF Train 5400] blocked two intersections from some time before 10:30 a.m. to some time after 11:29 a.m., a minimum of 59 minutes, and vehicles were present during that time. The blockage was not the result of adverse track conditions, weather, mechanical failure, terrain or other physical conditions."
The trial court also concluded that general order No. 135 was not preempted by either the ICCTA or the FRSA, reasoning as follows: "1. Preemption must be analyzed under the FRSA, not the ICCTA. The FRSA expressly permits state regulation where the Federal Railroad Administration has not issued a requirement 'covering' the same subject matter, or even if it has, where the state regulates an 'essentially local safety hazard.' [¶] 2. The Federal Railroad Administration has not issued any requirements that cover the subject matter of grade-crossing blockages. [¶] 3. [General order No.] 135 is a permissible regulation of an essentially local safety hazard. [¶] 4. [General order No.] 135 does not conflict with any federal requirements. [¶] 5. The blockage occurred after a train had been cleared to proceed through the Stege Intersection but instead received a red light and was required to stop. That train did not block any intersections, but a second train following behind it did. The blockage was caused by [BNSF's] decision to send two trains to the Stege Intersection, knowing that there was a reasonable chance that the first train would receive a red light, and that if it did, the second train would block intersections. Thus, the blockage was not caused by an occurrence beyond [BNSF's] control, or by compliance with federal requirements. [¶] The Court has concluded that the People have proven beyond a reasonable doubt that the blockage violated [general order No.] 135. As applied to the facts of this case, the provisions of [general order No.] 135 do not violate and are not preempted by either the FRSA or the ICCTA."
On November 4, 2010, the trial court ordered BNSF to pay a fine of $1,000 and restitution/court fees of $170. BNSF appealed to the appellate division of the superior court.*fn3 On BNSF's application for transfer, the appellate division of the superior court certified the case for transfer to the Court of Appeal. We then ordered the case transferred to settle an important question of law. (Pen. Code, § 1471; Cal. Rules of Court, rules 8.1002, 8.1005(a)(1).)
BNSF does not take issue with the trial court's factual findings or suggest that it did not violate general order No. 135. Instead, BNSF contends that the trial court erred in concluding that neither the ICCTA or the FRSA preempts general order No. 135. Specifically, BNSF argues: "[E]ach of the Superior Court's legal interpretations is the exact opposite of Congress' intent, and would require major changes in railroad operating procedures (e.g., shorter or faster and more frequent trains) that would have huge impacts on railroad economics. The Superior Court's decision could also result in a patchwork of differing state and local antiblocking regulations across the nation that would actually decrease rather than increase rail safety."
No California Court of Appeal has previously considered whether the ICCTA or FRSA preempts general order No. 135. When the facts are undisputed, preemption is a question of law. We review such questions de novo. (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10 [preemption resolved on demurrer]; Wholesale Electricity Antitrust Cases I & II (2007) 147 Cal.App.4th 1293, 1304 [same].) We conclude that general order No. 135 is preempted by the ICCTA.
A. General Preemption Principles
The Supremacy Clause states: "[The United States] Constitution, and the Laws of the United States . . . made in Pursuance thereof; . . . 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, cl. 2.) The doctrine of preemption gives force to the Supremacy Clause. Thus, when "a state statute conflicts with, or frustrates, federal law, the former must give way." (Easterwood, supra, 507 U.S. at p. 663; accord, Maryland v. Louisiana (1981) 451 U.S. 725, 746-747.)
The U.S. Supreme Court has recognized three types of preemption under the Supremacy Clause: express preemption, conflict preemption, and field preemption. (See Gade v. National Solid Wastes Management Assn. (1992) 505 U.S. 88, 98.) "Federal preemption 'fundamentally is a question of congressional intent . . . .' [Citation.] 'Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, [citation], when there is outright or actual conflict between federal and state law, [citation], where compliance with both federal and state law is in effect physically impossible, [citation], where there is implicit in federal law a barrier to state regulation, [citation], where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, [citation], or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. [Citation.]' [Citation.]" (Carrillo v. ACF Industries, Inc. (1999) 20 Cal.4th 1158, 1162.)
Because the ICCTA and the FRSA contain express preemption provisions (49 U.S.C. §§ 10501(b), 20106(a)), "the task of statutory construction must in the first instance focus on the plain wording of the clause[s], which necessarily contain the best evidence of Congress' pre-emptive intent." (Easterwood, supra, 507 U.S. at p. 664.) But, "our interpretation of that language does not occur in a contextual vacuum." (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 484-485.) "First, because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action. In all pre-emption cases, and particularly in those in which Congress has 'legislated . . . in a field which the States have traditionally occupied,' [citation], we 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' [Citations.] . . . [¶] . . . Also relevant . . . is the 'structure and purpose of the statute as a whole,' [citation], as revealed not only in the text, but through the reviewing court's reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law." (Id. at pp. 485-486.) " '[T]he purpose of Congress is the ultimate touchstone' . . . . [Citations.]" (Id. at p. 485.)
Thus, we consider whether Congress has expressed its "clear and manifest purpose" to preclude the regulation at issue in general order No. 135.
B. Which Statute Governs the Preemption Analysis?
First, we must consider whether the trial court erred in concluding that the focus should be on the FRSA only, and not on the ICCTA, in construing Congressional intent to preempt general order No. 135. In its special verdict, the trial court explained its reasoning: "[I]n Tyrrell v. Norfolk Southern [Ry. Co.] (6th Cir. 2001) 248 F.3d 517 [(Tyrrell)], plaintiff sued the railway in tort for injuries sustained while working, basing his claim on the railroad's alleged violation of a state train safety standard. The railroad argued that application of the state law, even in tort, was preempted by the ICCTA. The court, however, found that the ICCTA was not intended to create, in essence, an implied repeal of the FRSA and its preemption provisions, which allow state regulation under specified circumstances. . . . [¶] . . . [¶] This Court finds the Tyrrell view persuasive, because it harmonizes the very specific provisions of the FRSA with the more general provisions of the ICCTA. . . . Nothing indicates that Congress intended to abrogate the considered and specific treatment of preemption of state authority to regulate safety reflected in [the] FRSA. As noted above, courts finding preemption under the ICCTA have not thoroughly discussed the 'harmonization' problem, or found that the state law in question did not address 'safety' issues within the ambit of the FRSA. No court . . . has ...