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BNSF Railway Company v. Public Utilities Commission

California Court of Appeals, Third District

August 5, 2013

BNSF RAILWAY COMPANY et al., Petitioners,

ORIGINAL PROCEEDING. To review a decision of the Public Utilities Commission P.U.C. Dec. No. 12-08-028. Decision annulled.

Sims Law Firm, Michael E. Murphy, and Selim Mounedji for Petitioners.

Frank R. Lindh, Helen W. Yee, and Stacie Castro for Respondent.

Goodin, MacBride, Squeri, Day & Lamprey, Michael B. Day, Suzy Hong, Thomas J. MacBride, Jr., and Megan Somogyi for Real Party in Interest.


This writ of review proceeding presents the question of whether the Public Utilities Commission (the commission) has the authority to order railroads to stop using locomotive-mounted horns at certain pedestrian rail crossings in the City of San Clemente (the city). We conclude the answer to that question is “no, ” because in Public Utilities Code section 7604[1] the Legislature has commanded that an audible warning device mounted on the train must be sounded at every rail crossing in the state, except those within federally established quiet zones. Because the pedestrian crossings at issue here are not within a federally established quiet zone, a train horn must be sounded at those crossings, and the commission has no authority to order otherwise. Accordingly, we will set aside the commission’s decision to the contrary.


In the city, a railroad track separates the beach from the bluff on which the residential and commercial areas of the city are located. (Matter of the Application of the City of San Clemente (2004) Cal. P.U.C. Dec. No. 04-05-053, p. 1.) The track is presently used by petitioner BNSF Railway Company (BNSF) in the operation of freight trains and by petitioner National Railroad Passenger Corporation (Amtrak) in the operation of passenger trains. (We will refer to petitioners BNSF and Amtrak jointly as “the railroads.”)

Before 2004, access across the railroad track to and from the beach was essentially uncontrolled; beachgoers would walk up and down the bluff on informal trails and cross the track at virtually any point they chose. An effort to develop a more regular trail and safer crossings resulted in the San Clemente Pedestrian Beach Trail. Part of the overall plan for the beach trail was the San Clemente Beach Safety Enhancement Project, which included protective barriers, undercrossings, and at-grade crossings[2] and which was subject to the approval of the commission. The project, as approved by the commission in May 2004, coordinated the new beach trail with the improvement of two existing at-grade pedestrian crossings, the construction of four new at-grade pedestrian crossings, and the construction or improvement of four pedestrian undercrossings, “channeling pedestrians to the approved crossings through the use of vegetative barriers and fencing.”[3]

While the project the commission approved increased public safety along the three-mile stretch of beach, the project also resulted in significant complaints regarding the noise of the trains transiting the area, because approximately 50 trains per day travel that stretch of track, and the trains blow their horns at all seven of the at-grade pedestrian crossings. Accordingly, in August 2011 the city filed an application with the commission asking for “authority and approval... to alter and improve [the] seven existing San Clemente Beach Trail At-Grade Crossings.” In particular, the city sought approval to “[p]rovide an Audible Warning System (AWS) as a Supplemental Safety Measure at each Trail Crossing to be utilized during non-emergency conditions in lieu of train-mounted warning horns... in conjunction with other additions, alterations and improvements to the safety features of the Trail Crossings.” (Italics added.) In its application, the city asserted that “[t]he AWS, implemented at the seven Trail Crossings, would replace and eliminate the routine train horn warnings that currently intrude on residents who live adjacent to the Trail Crossings....” In support of its application, the city argued that under a complex interplay of certain California statutes and federal regulations, the commission had the authority to approve the use of wayside horns (that is, horns mounted at the crossings) instead of train horns at the pedestrian trail crossings.[4]

In September 2011, the railroads filed a protest and response to the city’s application, asserting that “because California state statutes require railroads to use locomotive mounted horns in advance of... pedestrian railroad crossings, the [commission] has no statutory authority to approve an automated wayside horn system... as a substitute for locomotive mounted horns, and the [commission] has no jurisdiction to order railroads to stop using locomotive mounted horns as required by California state statutes.”

In February 2012, the city moved for an interim ruling from the commission on whether the commission had the authority to approve the city’s request to use wayside horns in lieu of train horns. An administrative law judge (ALJ) granted that motion, and the parties briefed the jurisdictional issue.

In July 2012, the ALJ issued his proposed decision concluding that the commission has jurisdiction to consider approving the use of wayside horns instead of train horns at pedestrian rail crossings. The commission adopted that decision as its own in August 2012, effective immediately (Decision 12-08-028). Within 30 days, the railroads filed an application for rehearing to which the city responded, but the commission did not act on that application, and thus it was deemed denied after 60 days. (§ 1733, subd. (b).)

In November 2012, the ALJ issued a scoping memo and ruling setting an evidentiary hearing for January 2013 and the final decision for April 2013. In December 2012, the railroads commenced the present proceeding by filing a timely petition for a writ of review of the commission’s jurisdictional decision in this court. We issued the writ in February 2013.


The issue in this case is whether the commission has the authority to prohibit trains from using their horns at pedestrian rail crossings, in favor of audible warning signals mounted at the crossings, where those crossings are not located in a federally established quiet zone. The railroads contend the commission does not have that authority. We agree.


Sources And Limits Of The Commission’s Authority

We begin with the provisions of our state Constitution that govern public utilities, which are found in article XII. Section 3 of that article provides, as relevant here, that “[p]rivate corporations and persons that own, operate, control, or manage a line, plant, or system for the transportation of people or property..., and common carriers, are public utilities subject to control by the Legislature.” Under this provision, “all railroad carriers [are] subject to legislative control.” (City of Union City v. Southern Pac. Co. (1968) 261 Cal.App.2d 277, 278.) Section 1 of article XII provides for the composition of the commission, and section 4 gives the commission the power to “fix rates and establish rules for the transportation of passengers and property by transportation companies” (among other things). Section 5 of the article then provides that “[t]he Legislature has plenary power, unlimited by the other provisions of this constitution but consistent with this article, to confer additional authority and jurisdiction upon the commission....”

The Legislature exercised this power when it enacted sections 1201 and 1202 of the Public Utilities Code, “which are... broadly worded grants of power to the [commission] over railroad crossings in general.” (Santa Clara Valley Transportation Authority v. Public Utilities Com., supra, 124 Cal.App.4th at p. 351.) Section 1201 gives the commission the power to permit the constructions of crossings of a “public road, highway, or street” and “the track of any railroad corporation.” Subdivision (a) of section 1202 further provides in relevant part that the commission has the exclusive power “[t]o determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use, and protection of... each crossing of a public or publicly used road or highway by a railroad.”[5]

Even more broadly, the Legislature has authorized the commission to “supervise and regulate every public utility in the State and [to] do all things, whether specifically designated in [the Public Utilities Act] or in addition thereto, which are necessary and convenient in the exercise of such power and jurisdiction.” (§ 701.) “Additional powers and jurisdiction that the commission exercises, however, ‘must be cognate and germane to the regulation of public utilities....’ ” (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 905-906.) More important, “[p]ast decisions of [our Supreme C]ourt have rejected a construction of section 701 that would confer upon the Commission powers contrary to other legislative directives, or to express restrictions placed upon the Commission’s authority by the Public Utilities Code.” (Assembly v. Public Utilities Com. (1995) 12 Cal.4th 87, 103.)

Thus, however broad the scope of the commission’s authority over railroad crossings may be, the commission does not have the authority to contravene the expressed will of the Legislature in this area. In the railroads’ view, however, that is exactly what the commission will be doing if the commission approves the city’s application in this case and orders the railroads to stop sounding their locomotive horns at the pedestrian rail crossings along the city’s beach trail. According to the railroads, section 7604 “mandates the use of locomotive-mounted audible warning devices for trains approaching any and all railroad grade crossings within the State of California, including each of the San Clemente pedestrian grade crossings, and it does not give the Commission authority to restrict their use.”


The History Of Section 7604

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