Many states and municipalities have (or used to have) laws that limit the amount of time a railroad may block a traffic intersection. Time and again, courts have determined that these laws are preempted by either the Interstate Commerce Commission Termination Act (ICCTA), the Federal Railroad Safety Act (FRSA), or both. Every court considering ICCTA preemption has found the blocked crossing law was preempted, or has been overturned for failing to find ICCTA preemption. See People v. Burlington N. Santa Fe R.R., 148 Cal. Rptr. 3d 243, 255 (Cal. App. 1st Dist. 2012); see also Eagle Marine Industries, Inc. v. Union P. R. Co., 845 N.E.2d 869, 872 (Ill. App. 5th Dist. 2006), rev'd, 882 N.E.2d 522 (Ill. 2008). Every court but one considering FRSA preemption has found the blocked crossing law was preempted. That one outlier court (an Ohio state appeals court) has not been followed even within Ohio; Ohio courts instead have followed a contrary Federal Sixth Circuit Court of Appeals decision that was decided two years later. See State v. Wheeling & Lake Erie Ry. Co., 743 N.E.2d 513, 513 (Ohio App. 9th Dist. 2000); see also CSX Transp. Inc. v. City of Plymouth, 283 F.3d 812 (6th Cir. 2002). The issue appeared to be settled: state blocked-crossing statutes are not enforceable.
Norfolk Southern Railway Company (NS) challenged Indiana’s blocked crossing statute in 2015 on the basis of ICCTA and FRSA preemption, and the state trial court predictably followed the overwhelming precedent and found that statute was preempted. The state nevertheless appealed, but a successful appeal seemed doubtful. The Indiana statute wasn’t novel, and neither were the state’s arguments. NS filed extensive briefing and the Association of American Railroads filed an amicus brief (the briefs and oral argument can be found here). Yet, on October 10, 2017, the Indiana Court of Appeals reversed the trial court and held that Indiana’s blocked-crossing statute was not preempted. State v. Norfolk S. Ry. Co., 02A03-1607-IF-1524, 2017 WL 4508476 (Ind. App. Oct. 10, 2017).
The court made no attempt to distinguish the Indiana statute from other state statutes, or to challenge the reasoning of the other courts. It instead elected to ignore all of the myriad cases that reached the opposite conclusion by not citing or otherwise referring to any of them The court instead relied on a case that is not on point, as well as the discredited Ohio appellate court decision.
To briefly explain federal preemption over blocked-crossing laws, as mentioned, there are two primary statutes: ICCTA and the FRSA. ICCTA is an express preemption statute. It states in relevant part that:
the jurisdiction of the [federal Surface Transportation] Board over—
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
. . .
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). The “ICCTA preempts all state laws that may reasonably be said to have the effect of managing or governing rail transportation.” Ass'n of Am....
