IN THE INDIANA SUPREME COURT. Cause No.

Transcription

1 Filed: 02/15/ :13 AM Received: 1/16/2018 6:29 PM Filed: 02/15/ :13 AM IN THE INDIANA SUPREME COURT Cause No. On Petition to Transfer from the Indiana Court of Appeals, No. 02A IF-1524 Appeal from the Allen Superior Court STATE OF INDIANA, Appellant-Defendant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Appellee-Plaintiff. Trial Court Case Nos.: 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF ; 02D IF The Honorable Wendy Davis, Judge The Honorable David M. Zent, Magistrate BRIEF OF AMICI CURIAE, INDIANA RAIL ROAD COMPANY; CHICAGO SOUTH SHORE & SOUTH BEND RAILROAD; LOUISVILLE & INDIANA RAILROAD; THE CENTRAL RAILROAD COMPANY OF INDIANA; CENTRAL RAILROAD COMPANY OF INDIANAPOLIS; TOLEDO, PEORIA & WESTERN RAILWAY CORP.; INDIANA SOUTHERN RAILROAD, LLC; INDIANA & OHIO RAILWAY COMPANY; AND CHICAGO, FT. WAYNE & EASTERN RAILROAD 1

2 Karl L. Mulvaney, # Margaret M. Christensen, # Nana Quay-Smith, # BINGHAM GREENEBAUM DOLL LLP 2700 Market Tower, 10 W. Market St. Indianapolis, IN (317) Attorneys for Amici Curiae; Indiana Rail Road Company; Chicago South Shore & South Bend Railroad; Louisville & Indiana Railroad; The Central Railroad Company of Indiana; Central Railroad Company of Indianapolis; Toledo, Peoria & Western Railway Corp.; Indiana Southern Railroad, LLC; Indiana & Ohio Railway Company; and Chicago, Ft. Wayne & Eastern Railroad 2

3 TABLE OF CONTENTS Page TABLE OF CONTENTS... 3 TABLE OF AUTHORITIES... 4 INTEREST OF AMICI... 7 SUMMARY OF THE ARGUMENT... 8 ARGUMENT... 9 A. This appeal should have proceeded directly to this Court under Indiana Appellate Rule 4(A)(1)(b)....9 B. Indiana is currently a regulatory and transportation leader, but the Opinion endangers this status C. The Opinion renders Indiana an outlier, negatively impacting Indiana s railroads and businesses Illinois s Supreme Court has held that federal law preempts blocked crossing regulations The Pennsylvania Supreme Court has held that federal law preempts its blocked crossing statute The Sixth Circuit has held that federal law preempts Michigan s blocked crossing statute Ohio s blocked crossing statute has been held to be preempted D. If transfer is not granted, the Opinion could have long-term negative effects for Indiana, its economy, and its transportation industry The Opinion could harm Indiana s economy and rail industry Indiana cannot require railroads to speed up operations or shorten their trains to comply with Indiana s Blocked Crossing Statutes The Opinion could have far-reaching consequences beyond blocked crossing regulations WORD COUNT CERTIFICATE CERTIFICATE OF SERVICE

4 TABLE OF AUTHORITIES Page(s) Cases Boundary Backpackers v. Boundary Cnty., 913 P.2d 1141 (Idaho 1996) Celebrity Custom Builders v. Indust. Claim Appeals Office, 916 P.2d 539 (Colo. Ct. App. 1995) City of Cayce v. Norfolk S. Ry. Co., 706 S.E.2d 6 (S.C. 2011)... 18, 24 Columbus v. Guay, 577 N.E.2d 122 (Ohio Ct. App. 1989) Cowden v. BNSF Ry. Co., 690 F.3d 884 (8th Cir. 2012)... 18, 24 CSX Transp., Inc. v. City of Plymouth, 283 F.3d 812 (6th Cir. 2002)... 7, 16 CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993) CSX Transp. v. Georgia Pub. Serv. Comm n, 944 F. Supp (N.D. Ga. 1996)... 23, 24 CSX Transportation, Inc. v. Williams, Case No. 3:16-CV-2242, 2017 WL (N.D. Ohio April 28, 2017)... 7, 16, 17 Eagle Marine Indus., Inc. v. Union Pac. R.R. Co., 882 N.E.2d 522 (2008) Gade v. Nat l Solid Wastes Mgmt. Ass n, 505 U.S. 88 (1992) Girl Scouts of S. Illinois v. Vincennes Indiana Girls, Inc., 988 N.E.2d 250 (Ind. 2013)

5 Krentz v. Consol. Rail Corp., 910 A.2d 20 (Pa. 2006)... 15, 16 S. Pac. Co. v. State of Ariz. ex rel. Sullivan, 325 U.S. 761 (1945) Sekerez v. U.S. Steel Corp., 316 N.E.2d 413 (Ind. Ct. App. 1974) State v. Doe, 987 N.E.2d 1066 (Ind. 2013) State v. Gomez, 115 So. 3d 1200 (La. Ct. App. 2013) State v. Wheeling & Lake Erie Ry. Co., 743 N.E.2d 513 (Ohio Ct. App. 2000) Tex. Cent. Bus Lines Corp. v. City Midlothian, 669 F.3d 525 (5th Cir. 2012) Union Pac. R.R. Co. v. Chicago Transit Auth., 647 F.3d 675 (7th Cir. 2011) Village of Mundelein v. Wisconsin Cent. R.R., 882 N.E.2d 544 (Ill. 2008)... passim Acts, Rules and Statutes 49 U.S.C , ICC Termination Act... passim 49 U.S.C , Federal Railroad Safety Act... passim IND. APPELLATE RULE 4(A)(1)(B)... 8, 9, 10 IND. APPELLATE RULE 46(E)(2)...8 IND. APPELLATE RULE 57(H) IND. APPELLATE RULE 57(H)(3)... 16, 24 IND. APPELLATE RULE 57(H)(6)

6 IND. CODE (a)... 11, 12 IND. CODE , Indiana s Blocked Crossing Statute... passim O.R.C Constitutional U.S. Const. art. VI, cl. 2, Supremacy Clause of the United States Constitution... 8, 9, 10 Other Authorities CROSSING INVENTORY BY STATE, Federal Railroad Administration Office of Safety Analysis, available at tab.aspx (last visited January 16, 2018) FACT SHEET, Indiana Economic Development Corporation, available at iedc_2017_factsheet.pdf?sfvrsn=ae544ad1_36 (last visited January 4, 2018) LOGISTICS AND TRANSPORTATION IN INDIANA, Indiana Economic Development Corporation, available at (last visited January 4, 2018) TRANSPORTATION, DISTRIBUTION, AND LOGISTICS FACTS, Indiana Economic Development Corporation, available at

7 INTEREST OF AMICI Amici Curiae, Indiana Rail Road Company; Chicago South Shore & South Bend Railroad; Louisville & Indiana Railroad; The Central Railroad Company of Indiana; Central Railroad Company of Indianapolis; Toledo, Peoria & Western Railway Corp. ( TPWR ); Indiana Southern Railroad, LLC; Indiana & Ohio Railway Company; and Chicago, Ft. Wayne &Eastern Railroad ( CFE ) (collectively, the Short Line Railroads ), respectfully submit this brief in support of the Appellee s Petition to Transfer filed by Norfolk Southern Railway Company ( Norfolk Southern ). The Short Line Railroads are so defined because they generally operate over a relatively short distance. The Short Line Railroads own or operate eight short line railroads that connect Indiana, Illinois, Michigan, Ohio, and Kentucky. Because the Short Line Railroads operate rail lines between Indiana, Illinois, Michigan, Ohio, and Kentucky, they have a particular interest in uniformity of these states blocked crossing laws. As it stands, the law in these states is not uniform. Courts have held that federal law preempts blocked crossing regulations in Illinois, Michigan, and Ohio. Village of Mundelein v. Wisconsin Cent. R.R., 882 N.E.2d 544, 555 (Ill. 2008); CSX Transp., Inc. v. City of Plymouth, 283 F.3d 812, 817 (6th Cir. 2002); CSX Transportation, Inc. v. Williams, Case No. 3:16-CV-2242, 2017 WL , 7

8 *2 3 (N.D. Ohio April 28, 2017). The Court of Appeals published opinion (the Opinion ) in this case held that federal law did not preempt Indiana s blocked crossing statute, Indiana Code ( Indiana s Blocked Crossing Statute ). The Short Line Railroads face increased costs and reduced competitiveness due to the Opinion. To comply with the Opinion, the Short Line Railroads may incur increased operational costs by being forced to either operate shorter trains or break or cut them to avoid blocking crossings. Railroads in adjoining states will not face these increased costs, thereby reducing the competitiveness of the Short Line Railroads. The Short Line Railroads position aligns with Norfolk Southern s position. As required by Appellate Rule 46(E)(2), the Short Line Railroads have coordinated with Norfolk Southern to avoid duplication of arguments to the greatest extent possible. SUMMARY OF THE ARGUMENT The trial court invalidated Indiana s Blocked Crossing Statute based on preemption, a doctrine arising from the United States Constitution s Supremacy Clause. Therefore, the trial court invalidated an Indiana law on constitutional grounds and jurisdiction over this matter would have been proper in this Court on direct appeal pursuant to Appellate Rule 4(A)(1)(b). 8

9 Because of this controversial issue and the implication of the Supremacy Clause, this Court should grant transfer. This case is of great importance to Indiana because it significantly affects Indiana s railroads, which form an integral part of Indiana s infrastructure and economy. Among states, Indiana ranks 2 nd in line-haul railroads, 3 rd in total freight railroads, and 5 th in Class I railroads. Likewise, it ranks 1 st in rail tons of primary metals originated and terminated and 4 th among states in rail tons of food products originated. Importantly, the Opinion departs from decisions preventing local regulation of rail transport in Illinois, Pennsylvania, Michigan, and Ohio, rendering Indiana an outlier. The Opinion may increase costs for Indiana railroads and businesses, it will reduce their competitiveness, and it could spawn a host of local regulations of rail operations, further reducing the competitiveness of Indiana s railroads and businesses. This Court should grant transfer and join the many courts that have held that federal law preempts state blocked crossing regulations. ARGUMENT A. This appeal should have proceeded directly to this Court under Indiana Appellate Rule 4(A)(1)(b). The Supremacy Clause of the United States Constitution provides that the Constitution and laws of the United States are the supreme law of the 9

10 Land... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Union Pac. R.R. Co. v. Chicago Transit Auth., 647 F.3d 675, 678 (7th Cir. 2011) (quoting U.S. Const. art. VI, cl. 2.). As the United States Supreme Court has held, under the Supremacy Clause, from which our pre-emption doctrine is derived, any state law, however clearly within a State s acknowledged power, which interferes with or is contrary to federal law, must yield. Gade v. Nat l Solid Wastes Mgmt. Ass n, 505 U.S. 88, 108 (1992). In this case, the trial court invalidated Indiana s Blocked Crossing Statute based on preemption. That is, the trial court invalidated a state law on constitutional grounds. Under Indiana Appellate Rule 4(A)(1)(b), this Court has mandatory and exclusive jurisdiction over this and all appeals from judgments invalidating state statutes on constitutional grounds. State v. Doe, 987 N.E.2d 1066, 1070 (Ind. 2013). While the Court of Appeals has in the past decided preemption claims, decisional authority of this state and others supports the conclusion that a finding of preemption is a finding that the statute in question is unconstitutional. In Sekerez v. U.S. Steel Corp., 316 N.E.2d 413, 415 (Ind. Ct. App. 1974), the Court of Appeals transferred the appeal to this Court because the trial court order in question held that a statute was unconstitutional on various bases, including preemption. Indiana 10

11 is not alone in recognizing that a determination that a statute is preempted constitutes a finding that a state statute is unconstitutional. Celebrity Custom Builders v. Indust. Claim Appeals Office, 916 P.2d 539, 541 (Colo. Ct. App. 1995); see also State v. Gomez, 115 So. 3d 1200, (La. Ct. App. 2013) (statute deemed unconstitutional because it was field preempted); Boundary Backpackers v. Boundary Cnty., 913 P.2d 1141, 1148 (Idaho 1996) (preempted ordinance was thereby unconstitutional); Columbus v. Guay, 577 N.E.2d 122, (Ohio Ct. App. 1989) (same). As a result, it would have been appropriate for this appeal to proceed directly to this Court. See Girl Scouts of S. Illinois v. Vincennes Indiana Girls, Inc., 988 N.E.2d 250, 253 (Ind. 2013). Because this Court properly has mandatory jurisdiction over this matter in the first place, and because the Opinion conflicts with federal appellate decisions, determined an undecided question of law, and significantly departs from accepted law, this Court should grant transfer and decide this case as though it were deciding the case for the first time on appeal. Ind. R. App. Proc. 57(H). B. Indiana is currently a regulatory and transportation leader, but the Opinion endangers this status. Indiana is currently a leader in logistics and transportation. To maintain this position, Indiana must have coherent, consistent, and efficient laws. The Opinion endangers Indiana s position as a transportation leader by 11

12 imposing costs on Indiana railroads and businesses not confronting railroads and businesses in other states. The Indiana Legislature has sought to improve the quality of life for the citizens of Indiana by encouraging the orderly economic development and growth of Indiana, the creation of new jobs, the retention of existing jobs, the growth and modernization of existing industry, and the promotion of Indiana. Ind. Code (a) (stating the purpose for the creation of the Indiana Economic Development Corporation). Indeed, Indiana promotes itself as A State that Works. Indiana prides itself as having the best regulatory environment of any state in the country. 1 And Indiana promotes itself as a logistics and transportation leader: Indiana is a global logistics leader and offers companies a strong competitive advantage when it comes to reaching North American and world markets. 2 The competitiveness of Indiana s railroads is critical to the economic vitality of the state. Among states, Indiana ranks 1 st in shortest distance to median center of U.S. population, 2 nd in line-haul railroads, 3 rd in total 1 See, 2017 FACT SHEET, Indiana Economic Development Corporation, available at _factsheet.pdf?sfvrsn=ae544ad1_36 (last visited January 4, 2018). 2 See TRANSPORTATION, DISTRIBUTION, AND LOGISTICS FACTS, Indiana Economic Development Corporation, available at file:///c:/users/jlaurin/downloads/transportation,%20distribution,%20logisti cs%20facts..pdf (last visited January 4, 2018). 12

13 freight railroads, and 5 th in Class I railroads. Id. It also ranks 1 st in rail tons of primary metals originated and terminated and 4 th in rail tons of food products originated. Id. With 41 freight railroads operating in Indiana, the state ranks 4 th in the number of freight railroads. 3 And Indiana has 5,633 public grade crossings. 4 As will be shown, the Opinion renders Indiana an outlier and endangers its position as a logistics leader. C. The Opinion renders Indiana an outlier, negatively impacting Indiana s railroads and businesses. Courts in Illinois, Pennsylvania, Michigan, and Ohio, among other states, have held that federal law preempts their blocked crossing regulations. The Indiana Court of Appeals reached the opposite conclusion, leaving Indiana an outlier and reducing the competitiveness of Indiana s railroads and businesses. Because industry hubs require transportation access, businesses often prefer to locate near a short line railroad with connections to multiple carriers. If the State is permitted to burden Indiana railroads with regulations, the increased transportation costs may push industry away from Indiana. This Court should grant transfer to bring 3 See LOGISTICS AND TRANSPORTATION IN INDIANA, Indiana Economic Development Corporation, available at (last visited January 4, 2018). 4 CROSSING INVENTORY BY STATE, Federal Railroad Administration Office of Safety Analysis, available at (last visited January 16, 2018). 13

14 Indiana s blocked crossing jurisprudence in line with the well-reasoned decisions of its neighboring states and protect Indiana s infrastructure economy. 1. Illinois s Supreme Court has held that federal law preempts blocked crossing regulations. In Village of Mundelein, 882 N.E.2d at 550, the Illinois Supreme Court analyzed whether the Federal Railroad Safety Act ( FRSA ) preempted a village ordinance, which had adopted an Illinois statute prohibiting trains from obstruct[ing] public travel at a railroad-highway grade crossing for a period in excess of 10 minutes. The Illinois blocked crossing statute is very similar to Indiana s Blocked Crossing Statute, which prohibits trains from obstruct[ing] public travel at a railroad-highway grade crossing for a period in excess of ten (10) minutes. Ind. Code The Illinois Supreme Court concluded that the effect of the Village s ordinance was to regulate the movement of trains at highway grade crossings. Id. at 552. The Illinois Supreme Court concluded that the FRSA, and its regulations, preempted state blocked crossing regulations: These various regulations on train speed, air-brake testing, and grade crossing safety work together to regulate and control the movement of trains at grade crossings. They control whether a train may be moved and the speed of a moving train. Taken together, the overall structure of these regulations substantially subsumes the subject matter of the movement of trains at grade crossings. We, therefore, find that the regulations manifest a 14

15 clear intent to preempt the Village's ordinance on that subject matter. Id. at 553. The Illinois Supreme Court held that the Village s ordinance is preempted by the FRSA and is, therefore, unenforceable. Id. at 556. Three days after issuing Village of Mundelein, the Illinois Supreme Court issued a second decision holding that federal law preempted Illinois blocked crossing statute. Eagle Marine Indus., Inc. v. Union Pac. R.R. Co., 882 N.E.2d 522, 524 (2008). In reaching the opposite conclusion, the Court of Appeals did not address the Illinois Supreme Court s decisions on this critical issue. This difference between Illinois and Indiana law is not simply academic. At many places, a road marks the boundary between Illinois and Indiana. Indeed, TPWR and CFE enter Indiana at grade crossings over a border road. If a TPWR or CFE train blocked this crossing, the front and back half of the train would be subject to different regulatory regimes. This Court should grant transfer and follow the Illinois Supreme Court s well-reasoned decision, ensuring that all railroads are subject to consistent regulations. 2. The Pennsylvania Supreme Court has held that federal law preempts its blocked crossing statute. In Krentz v. Consol. Rail Corp., 910 A.2d 20, 35 (Pa. 2006), the Pennsylvania Supreme Court concluded that the plain language and codification of [Pennsylvania s blocked crossing statute] make clear that the 15

16 effect of the statute is to regulate the movement of trains. The Court held that the FRSA expressly preempts Pennsylvania s blocked crossing statute. Id. at The Sixth Circuit has held that federal law preempts Michigan s blocked crossing statute. In City of Plymouth, 283 F.3d at 814, Michigan enacted a statute that prohibits trains from continuously blocking grade crossings for more than five minutes. The Michigan statute would thus require CSXT to modify either the speed at which its trains travel or their length, and would also restrict CSXT s performance of federally mandated air brake tests. Id. at 817. The Sixth Circuit held that Michigan s blocked crossing statute is preempted by the FRSA. Id. While the Opinion did not address the Sixth Circuit s decision, the Opinion conflicts with it, supporting that this Court should grant transfer. Ind. R. App. Proc. 57(H)(3). 4. Ohio s blocked crossing statute has been held to be preempted. In CSX Transportation, 2017 WL at *1, the Northern District of Ohio addressed whether federal law preempted Ohio s blocked crossing statute. Ohio s statute prohibited any railroad company to obstruct... a public street, road, or highway, by permitting a railroad car, locomotive, or other obstruction to remain upon or across it for longer than five minutes. 16

17 (quoting O.R.C ) (alteration in original). CSX argued that the FRSA and the ICC Termination Act, 49 U.S.C , et seq. ( ICCTA ), preempted Ohio s blocked crossing statute. Id. The district court concluded that ICCTA expressly or categorically preempts any state or local laws that have the effect of managing or governing rail transportation. Id. at *2 (quoting Tex. Cent. Bus Lines Corp. v. City Midlothian, 669 F.3d 525, 532 (5th Cir. 2012)). The district court held that [b]ecause purports to regulate rail transportation namely, by limiting the amount of time a train can block a crossing the ICCTA categorically preempts that law. 5 Id. at *3. In concluding that Indiana s Blocked Crossing Statute is not preempted, the Court of Appeals relied on a much older Ohio decision. In State v. Wheeling & Lake Erie Ry. Co., 743 N.E.2d 513, 514 (Ohio Ct. App. 2000), the Ohio Court of Appeals, with little analysis, concluded that the FRSA does not preempt Ohio s blocked crossing statute. Since that time, many other state supreme courts and federal appellate courts have come to the opposite conclusion. Indeed, the Northern District of Ohio has recently concluded that federal law preempts the very statute at issue in Wheeling. CSX Transportation, 2017 WL at *4. As a result, Wheeling is of little 5 Because the district court concluded that ICCTA preempted enforcement of Ohio s blocked crossing statute, it did not address whether FRSA did as well. Id. at *3 n.3. 17

18 persuasive weight and should not form a basis for rendering Indiana an outlier among its neighboring states. As it stands, courts in Illinois, Michigan, Pennsylvania, and Ohio, have held that federal law preempts state and local blocked crossing regulations. Indiana is now an island allowing unique local regulation at the center of the United States rail network. This creates the patchwork of local regulation that Congress and federal regulation of the railroad industry sought to avoid. See Cowden v. BNSF Ry. Co., 690 F.3d 884, 891 (8th Cir. 2012) (noting that FRSA and in particular, its speed regulations were adopted to address the patchwork effect of each state applying its own set of regulations ); City of Cayce v. Norfolk S. Ry. Co., 706 S.E.2d 6, 11 (S.C. 2011) (holding that the purpose of the ICCTA is to prevent the development of a patchwork of local and state regulations affecting the railroad industry, as the enactment of differing standards and requirements would inevitably be detrimental to the orderly functioning of the industry as a whole ). In holding that federal law does not preempt Indiana s Blocked Crossing Statute, the Opinion did not address the decisions from our neighboring states reaching the opposite conclusion. Given Indiana s central location and the importance of rail transport in this state, Indiana cannot be an outlier. This Court should grant transfer to bring Indiana s blocked 18

19 crossing jurisprudence into conformity with the well-reasoned decisions of its neighboring states. D. If transfer is not granted, the Opinion could have long-term negative effects for Indiana, its economy, and its transportation industry. If this Court does not grant transfer and hold that federal law preempts Indiana s Blocked Crossing Statute, then Indiana s economy and rail industry will be harmed. Indiana s status as a transportation and logistics leader will be in jeopardy. The Opinion will impose costs and inefficiencies on Indiana s railroads and businesses that will not similarly face railroads and businesses in other states. Importantly, two of the methods recognized by the Court of Appeals for complying with Indiana s Blocked Crossing Statute (modifying speed or shortening trains) conflict with federal law. Finally, the Opinion could spawn a host of local regulations on rail operations, further eroding Indiana s competitiveness. Given the importance of these issues, this Court should grant transfer and hold that federal law preempts Indiana s Blocked Crossing Statute. 1. The Opinion could harm Indiana s economy and rail industry. As the Opinion acknowledged, to comply with Indiana s Blocked Crossing Statute, railroads could run shorter (and, therefore, more numerous) trains so they can be stopped without obstructing grade 19

20 crossings, or they could break or cut the train to open the grade crossing for motor vehicle traffic. (Opinion 4.) However, each of these operational changes would increase the costs of rail operations in Indiana. Shortening trains would require running more trains to move the same number of cars, increasing the cost of doing business in Indiana. Likewise, as the Court of Appeals itself recognized, [r]equiring employees to cut and reassemble train segments each time a train may block a grade crossing for more than ten minutes would also delay Norfolk Southern s train operations/traffic because of the time involved in performing these maneuvers. (Id.) If Indiana s railroads are required to shorten their trains or cut them, costs of moving freight in Indiana will likely increase. The Short Line Railroads will be particularly affected due to the concentration of their operations in Indiana. To make up for these increased costs, railroads may have to cut investments or jobs. The Short Line Railroads alone employ hundreds of people in this state and have made hundreds of millions of dollars of investment. Indiana railroads will be less competitive than railroads in other states, where blocked crossing statutes have properly been held to be preempted. These increased costs will likely be passed on to Indiana businesses in the form of increased transportation rates, which will need to either reduce other costs or increase their prices, making them less 20

21 competitive. The Opinion threatens Indiana s status as a leader in logistics and transportation. This Court should grant transfer to ensure that Indiana s economy, railroad industry, and citizens do not suffer a competitive disadvantage and are not harmed by the Opinion. 2. Indiana cannot require railroads to speed up operations or shorten their trains to comply with Indiana s Blocked Crossing Statutes. As the trial court recognized, a railroad could satisfy Indiana s Blocked Crossing Statute by running trains faster or by shortening trains. (Opinion 4.) But this implied regulation of train speed or length is preempted by federal law and leaves railroad operators in a compliance paradox. First, as the United States Supreme Court has recognized, the Secretary, acting through the Federal Railroad Administration (FRA), promulgated regulations under FRSA setting maximum train speeds for different classes of track. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 662 (1993); Village of Mundelein, 882 N.E.2d at 553. The federal government sets train speed limits. Trains may not simply go faster to comply with Indiana s Blocked Crossing Statute where track speed limits would not allow greater speed. Second, as the United States Supreme Court long ago recognized, states cannot restrict train length: 21

22 If one state may regulate train lengths, so may all the others, and they need not prescribe the same maximum limitation. The practical effect of such regulation is to control train operations beyond the boundaries of the state exacting it because of the necessity of breaking up and reassembling long trains at the nearest terminal points before entering and after leaving the regulating state. The serious impediment to the free flow of commerce by the local regulation of train lengths and the practical necessity that such regulation, if any, must be prescribed by a single body having a nation-wide authority are apparent. S. Pac. Co. v. State of Ariz. ex rel. Sullivan, 325 U.S. 761, 775 (1945). Indiana cannot require railroads to shorten trains to comply with Indiana s Blocked Crossing Statute because this would regulate train operations beyond Indiana s boundaries. Indiana cannot require railroads to speed up operations or shorten trains to comply with Indiana s Blocked Crossing Statute. Because neither of these purported solutions works (and because the other proposed solution of cutting trains impedes operations and presents unnecessary safety risks), this Court should grant transfer and conclude that federal law preempts Indiana s Blocked Crossing Statute. 3. The Opinion could have far-reaching consequences beyond blocked crossing regulations. The Opinion concluded that ICCTA did not preempt Indiana s blocked crossing statute because ICCTA does not include language regarding regulation of a blocked crossing for traffic regulation purposes. (Opinion 22

23 15.) The Court of Appeals also commented: [a]s we concluded regarding ICCTA supra, there is no language in FRSA which explicitly pre-empts Indiana s Blocked Crossing Statute. (Id. 18.) The Opinion did not cite any authority to support this proposition, and it has been rejected many times. If this holding stands, then state or local governments could regulate railroads in myriad ways ranging from fuel to shift limitations for employees, so long as a federal regulation did not directly address that precise issue. This would further erode Indiana s position as a leader in transportation and logistics. The purpose of a broad preemption provision, such as that found in the ICCTA, can be to ensure no state or local regulation of an issue. By way of example, the Northern District of Georgia has concluded that ICCTA preemption does not depend on the presence of a federal remedy. CSX Transp. v. Georgia Pub. Serv. Comm n, 944 F. Supp. 1573, 1581 (N.D. Ga. 1996). In that case, defendants argued that ICCTA preempt[s] state remedies only when federal remedies are provided under the Act. Id. Defendants thus reason that the Act does not preempt state regulation of railroad agency closings because the Act provides no federal remedy for railroad agency closings. Id. The district court concluded, Defendants argument reflects a misunderstanding not only of the plain language of section 10501(b)(2) [ICCTA], but also of the ICC Termination Act generally. The most natural reading of section 10501(b)(2) is that the federal remedies provided by the 23

24 Id. ICC Termination Act are the only remedies available as to the regulation of rail transportation, and that the federal remedies are exclusive of state remedies except where the ICC Act has expressly provided otherwise. The Illinois Supreme Court has similarly concluded that the fact that there is no specific federal regulation governing the amount of time a standing train may block a highway grade crossing is irrelevant to our analysis. As we have found, the federal regulations as a whole substantially subsume the subject matter of the movement of trains at grade crossings. Village of Mundelein, 882 N.E.2d at 554. As a result, this Court should grant transfer because the Opinion s holding that preemption will not lie without a federal remedy conflicts with federal appellate decisions and is a significant departure from accepted law. Ind. Appellate Rule 57(H)(3), (6). If the Opinion stands, then state or local entities could regulate railroad operations in myriad ways, so long as the regulation did not precisely mirror a federal regulation. This would result in the patchwork of regulation the FRSA and ICCTA seek to avoid. See Cowden, 690 F.3d at 891; City of Cayce, 706 S.E.2d at 11. Moreover, the Opinion s holding in this regard does not recognize that the federal government may have purposefully chosen not to regulate a particular operational practice. In such a 24

25 circumstance, it would be entirely inappropriate for a state or local entity to fill this purposefully created void with their own regulations. Because the Opinion s holding that preemption only occurs when a federal regulation provides a remedy has been repeatedly rejected, and because this holding could have ramifications far beyond blocked crossing regulations, this Court should grant transfer and hold that the perceived lack of a federal remedy for blocked crossings does not preclude preemption. CONCLUSION For the foregoing reasons, this Court should grant transfer and conclude that federal law preempts Indiana s Blocked Crossing Statute. Respectfully submitted, /s/ Karl L. Mulvaney Karl L. Mulvaney, # Margaret M. Christensen, # Nana Quay-Smith, # BINGHAM GREENEBAUM DOLL LLP 2700 Market Tower, 10 W. Market St. Indianapolis, IN (317) kmulvaney@bgdlegal.com mchristensen@bgdlegal.com nsmith@bgdlegal.com Attorneys for Amici Curiae; Indiana Rail Road Company; Chicago South Shore & South Bend Railroad; Louisville & Indiana Railroad; The Central Railroad Company of Indiana; Central Railroad Company of Indianapolis; Toledo, Peoria & Western Railway Corp.; Indiana Southern Railroad, LLC; Indiana & Ohio Railway Company; and Chicago, Ft. Wayne & Eastern Railroad 25

26 WORD COUNT CERTIFICATE Pursuant to Rule 44(F) of the Indiana Rules of Appellate Procedure, I verify that this Brief contains no more than 4,200 words. /s/ Karl L. Mulvaney Karl L. Mulvaney, # Margaret M. Christensen, # Nana Quay-Smith, # BINGHAM GREENEBAUM DOLL LLP 2700 Market Tower, 10 W. Market St. Indianapolis, IN (317) kmulvaney@bgdlegal.com mchristensen@bgdlegal.com nsmith@bgdlegal.com 26

27 CERTIFICATE OF SERVICE I hereby certify that on January 16, 2018, the foregoing was filed with the Clerk of the Indiana Supreme Court via electronic filing utilizing the Indiana E-Filing System (IEFS). I hereby certify that on January 16, 2018, the foregoing was served upon the following persons, via IEFS: Party: State of Indiana - Appellant Larry D. Allen Larry.Allen@atg.in.gov Curtis T. Hill, Jr. efile@atg.in.gov Party: Norfolk Southern Railway Company - Appellee Bryan H Babb bbabb@boselaw.com Bradley M. Dick bdick@boselaw.com John Duffey jcd@stuartlaw.com Heather L. Emenhiser hle@stuartlaw.com Party: Association of American Railroads - Amicus Curiae Harold Abrahamson aralawfirm@aol.com Jonathan E. Halm halmjonathan@hotmail.com Party: Francis P. Mulvey and Charles D. Nottingham, Amici Curiae Stephen J. Peters speters@plunkettcooney.com David I. Rubin drubin@plunkettcooney.com I hereby certify that the foregoing has been served upon the following counsel of record via electronic mail and by United States Mail, first class, postage prepaid on January 16, 2018, as follows: Hanna M. Chouest Sidley Austin LLP 1501 K Street NW Washington, DC hchouest@sidley.com Raymond A. Atkins Sidley Austin LLP 1501 K Street NW Washington, DC ratkins@sidley.com _4 /s/ Karl L. Mulvaney 27