OKLAHOMA CITY – His previous attempt to prevent freight trains from blocking railroad crossings in this state for prolonged periods of time was declared unenforceable by federal courts. But that didn’t deter Oklahoma House Speaker Charles McCall from trying again this year.
The state Corporation Commission in 2019 sought changes to its rules, including one about trains blocking at-grade railroad crossings.
Later that year the state Legislature passed House Bill 2472, the Blocked Crossing Act by Speaker McCall (R-Atoka). That measure would have prohibited railcars from blocking vehicle traffic at a crossing on a public highway or street for longer than 10 minutes, except in emergency situations or if the train is “continuously moving.” The law authorized a fine of up to $1,000 per violation.
The cities of Edmond and Davis each filed a complaint against BNSF with the Corporation Commission, and a commission official issued a citation and notice of hearing.
BNSF filed suit in Oklahoma City’s Western District federal court against Edmond, Davis and the Corporation Commission to prevent enforcement of the statute, and U.S. District Judge Charles B. Goodwin sided with BNSF.
The state appealed to Goodwin’s ruling to the U.S. Court of Appeals for the 10th Circuit, and lost, and then to the U.S. Supreme Court, which declined to review the case.
Undeterred, McCall filed House Bill 1939 this year “to address the dangers associated with trains blocking intersections or streets in which emergency vehicles could be prohibited from providing critical access to the citizens of Oklahoma.”
“Every railroad shall be operated in such a manner as to minimize obstruction of emergency vehicles at public highway grade crossings,” the bill decrees.
HB 1939 mandates that, as a general rule, a train or railcar must be “brought to rest” in a position that does not obstruct traffic at a railroad intersection with a public highway or street.
Among the exceptions would be if the train were moving forward or backward or stopped for an “emergency condition”; the train was unable to complete a switching maneuver; or the train was stopped for a red signal or to allow another train to pass.
A violation of the proposed law could be punished with a fine of up to $5,000.
HB 1939 was assigned to the House Rules Committee and remains a “live round” in the Legislature.
Oklahoma supports Ohio law similar to Speaker McCall’s
An Ohio law similar to McCall’s HB 2472 is on appeal to the U.S. Supreme Court, with support from Oklahoma and several other states.
In the Ohio case, state prosecutors charged CSX railroad in 2018 with five violations of a state law that prohibits trains from blocking roads for more than five minutes at a time, a misdemeanor. The rail company frequently stopped trains for as long as an hour to load and unload supplies at an auto factory northwest of Columbus.
CSX argued that Ohio’s law overstepped the state’s authority, because federal laws govern many aspects of the railroad industry. It cited two specific laws: the so-called Termination Act that created the federal Surface Transportation Board, which oversees rail carriers, and the Federal Railroad Safety Act, which governs safety aspects of rail operations.
Lower courts have determined that federal laws preempt the state rules, even though the federal laws don’t specifically address blocked crossings.
States supporting Ohio’s appeal to the U.S. Supreme Court include Alabama, Connecticut, Delaware, Idaho, Indiana, Kansas, Kentucky, Michigan, Mississippi, Montana, Nebraska, Oklahoma, Oregon, South Carolina, Texas, Virginia, Washington, West Virginia, plus the District of Columbia.
ICC Termination Act superseded Oklahoma law, OKC federal court ruled
The Interstate Commerce Commission Termination Act of 1995 preempted Oklahoma’s statute because the ICCTA regulates railroad operations, Oklahoma Western District Federal Judge Goodwin ruled. The 10th Circuit affirmed his decision, and the Supreme Court denied the state’s request to review that order.
U.S. courts have observed that federal law “shall be the supreme Law of the Land” regardless of anything in a state’s constitution or statutes to the contrary.
Congress passed the ICCTA “to establish an exclusive Federal scheme of economic regulation and deregulation for railroad transportation.” The ICCTA provides that the Surface Transportation Board has exclusive jurisdiction over transportation by rail carriers and the operation of tracks or facilities, including side tracks.
“The plain language is clear: the Surface Transportation Board has exclusive jurisdiction over the operation of side tracks in Oklahoma,” the appellate court declared.
The Blocked Crossing Statute “regulates how long a rail carrier may block, or occupy, a grade crossing before municipal authorities may fine the rail carrier.” However, the judges noted, “many factors determine the time that a train will block a grade crossing,” including the train’s speed and length, whether the side track intersects the grade crossing, and when a railroad schedules a train to pass.
“The Court does not conclude that any statute relating to blocked crossings is prohibited,” Judge Goodwin wrote in his opinion on Nov. 30, 2020. “But a statute that tells railroad companies how long they may stop their trains – for whatever ends – intrudes on the territory reserved to the ICCTA.”
While Oklahoma contends its statute is “for the safety and welfare of the people,” it “effectively regulates rail operations” too, a task the ICCTA reserves for the STB, the appellate court wrote.
The Surface Transportation Board has concluded that the scope of ICCTA preemption “is broader than just direct economic regulation of railroads” and that states and municipalities “cannot take an action that would have the effect of foreclosing or unduly restricting a railroad’s ability to conduct its operations or otherwise unreasonably burden interstate commerce.”
State emphasized its safety concerns
States “generally assume they have safety authority over operations, while railroads generally assume complete preemption of state laws, making any legislative or negotiated solution needlessly difficult,” then-Oklahoma Attorney General Mike Hunter told the Supreme Court.
“Moreover, clarity is needed because, aside from the states, no one is doing anything to solve the numerous safety issues arising from the chronic problem of stopped trains blocking public roads.”
BNSF “does not attempt to address these issues, choosing instead to jam as many trains onto its network as possible, maximizing both its profits and the harm caused by perennial blocked crossings,” then-Oklahoma Solicitor General Mithun Mansinghani wrote.
“We’re trying to get a message to the feds that we want BNSF to be a good neighbor,” Kansas state Sen. Carolyn McGinn said about a bill in the Sunflower State’s Legislature that would limit trains to a maximum length of 8,500 feet, or approximately 1.6 miles, on any main line or branch line.
During debate on HB 2472 in 2019, McCall said some 911 coordinators informed him that because of trains blocking at-grade railroad crossings, they had to send first responders up to 20 miles out of their way to respond to emergencies.
The Federal Railroad Administration “has studied the issue for years,” Mansinghani noted, “and yet, despite acknowledging the safety hazards, it has not issued any regulation or order regarding the issue.”
The state pointed out that blocked crossings in Oklahoma have “forced a paramedic . . . to jump between rail cars of a stopped train to reach a patient in time,” delayed the response times of firefighters and paramedics, and “caused Oklahomans to engage in risky behavior to avoid blocked crossings.”
The “10-minute rule” addressed those safety concerns and therefore fell under the Federal Railroad Safety Act, the State of Oklahoma maintained. The 10th Circuit court, though, said that while the state’s safety concerns are “legitimate,” they “do not concern any ‘hazard to the railroad system or its participants’. Rather, they are local public safety issues – not rail safety issues.”
All three federal courts concluded that federal law supersedes the state statute, so the Oklahoma law was null and void.
Okla. has 2,900 miles of tracks, 3,475 crossings
Oklahoma is crisscrossed by approximately 2,900 miles of railroad tracks that intersect with county roads, municipal streets, and state/federal highways at 3,475 at-grade crossings.
Major lines in Oklahoma include the Burlington Northern Santa Fe, which has 952 miles of track in this state, according to a document entered into the court record. The Union Pacific Railroad reports 1,240 miles of track in Oklahoma.
Other railroads in Oklahoma include the Kansas City Southern, 150 miles of track; the Stillwater Central, 257 miles; Grainbelt Corp., 180 miles; the Kiamichi Railroad, 156 miles; Arkansas-Oklahoma Railroad, 70 miles; the Wichita, Tillman & Jackson Railroad, 61 miles; the Hollis & Eastern Railroad, 14 miles; and several other “short lines.”