Wisconsin Court of Appeals Finds City Citations for Crossing Blockages Preempted
- On April 1, 2019
Recently, the State of Wisconsin provided another opportunity to further strengthen Federal preemption over State and local blocked crossing enactments. The City of Weyauwega is located in north central Wisconsin on the CN main line. CN’s operations are extensive through the city, including a large siding at which CN conducts crew changes and train meets.
The City of Weyauwega began to issue citations to CN in late 2014 as a result of street crossing blockages when CN was conducting the train meets or crew changes. The parties agreed to hold the vast majority of citations in abeyance and try one citation through the courts to determine the effect of Federal preemption. Both the municipal court and the circuit court acknowledged that preemption applied, but held that the City presented “an essentially local safety hazard,” under 49 U.S.C. § 20106. CN appealed to the Wisconsin Court of Appeals, arguing:
(1) the City of Weyauwega was a city and not a state for FRSA preemption purposes and therefore, a lower standard of preemption applied;
(2) FRSA regulations substantially subsumed the issue of train operations at crossings; and
(3) the City of Weyauwega did not present an essentially local safety hazard.
On the first issue, the Court of Appeals punted. The Court of Appeals acknowledged that a number of cases throughout the country express conflicting views on this issue of whether a city enactment should be considered a “State” law for the purposes of FRSA preemption analysis. The City of Weyauwega quoted City of Columbus v. Ours Garage and Wrecker Service., Inc., 536 U.S. 424 (2002), in saying that the FRSA meant state and locality, when it only says state. The railroad countered with CSX Transp., Inc. v. City of Plymouth, 86 F.3d 626 (6th Cir. 1996), which held that only state laws that regulate areas in which there are no Federal regulations are given higher deference under the FRSA preemption clause. The court declined to rule on that issue but its language indicates that it was leaning towards a local enactment not being entitled to the same deference that a state enactment would be with regard to FRSA preemption.
The Court more directly addressed the other two issues. First, the Court held that FRSA regulations regulate or subsume the subject matter of train operations at blocked crossings. The Court found that Weyauwega’s ordinance dealt with regulating train operations and that FRSA regulations addressing various subject matters—such as 49 CFR Part 213 on the maximal allowable speeds for trains, 49 CFR Part 234 on regulations about crossing safety in the event that crossing warning systems malfunction, and 49 CFR Part 232 on rules about when a train must stop and start with regard to air brake testing—clearly cover train operations at crossings and, therefore, cover the subject matter of the City’s ordinance.
Next, the Court considered whether the City presented an essentially local safety hazard. This was a most critical issue because Weyauwega argued that its unique situation of having emergency services on one side of the tracks and a couple of medical facilities on the other side of the tracks created an essentially local safety hazard that entitled it to an exception to preemption. The Court disagreed with the City’s assertion. Instead, the Court found that the Weyauwega situation was similar to communities throughout Wisconsin in which the railroads came first, and the communities built themselves around the railroad on both sides of it; making the Weyauwega situation very common throughout Wisconsin. Weyauwega’s situation did not present an essentially local safety hazard that was entitled to an exception to preemption. The case cite is City of Weyauwega v. Wisconsin Central Ltd., 384 Wis.2d 382, 919 N.W. 2d 609 (Wis. App. 2018).