United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. MCKINLEY, JR., CHIEF JUDGE.
matter came before the Court on Plaintiff's Motion for
Preliminary Injunction [DN 3]. Pursuant to Fed.R.Civ.P.
65(a)(2), the trial on the merits was advanced and
consolidated with the hearing on the injunction motion. The
hearing took place on March 1, 2018. The parties have filed
post-trial briefs and the matter is ripe for decision
Plaintiff CSX Transportation (“CSXT”) operates a
rail line that runs through the City of Sebree, Kentucky (the
“City”). The rail line crosses six city streets.
The grade of these crossings has been an issue with the City
for some time.
1966, the City passed an ordinance (the “1966
Ordinance”) prohibiting the Louisville and Nashville
Railroad (CSXT's predecessor, “L&N”) from
altering the grade of the railroad tracks at any street
crossing in the City without first obtaining approval from
the City Council. Then, in 1979, when the City denied
permission to L&N to conduct track maintenance which
would raise the height of the crossings, L&N filed a
lawsuit against the City in Webster Circuit Court. The
Webster Circuit Court enjoined L&N from performing any
work that would result in raising the grade of the crossings
in violation of the 1966 Ordinance. Ultimately, L&N and
the City entered into an Agreed Order (the “1979 Agreed
Order”) in which L&N promised it would not raise
the level of the tracks at Dixon Street and that it would
only raise the tracks at Main Street no more than 0.4 feet.
recently, in 2013, CSXT sought to perform track maintenance
that would require raising the elevation of the tracks at
certain street crossings. Because CSXT did not first seek and
obtain approval from the Sebree City Council, City officials
stopped the work. After a dispute involving both railroad
police and City police officers, CSXT chose “to
undertake alternative minimal maintenance that did not
require raising the tracks.” (Mot. for Prelim. Inj. [DN
3] at 3.)
current dispute arose in August 2017, when CSXT gave notice
to the City of its intent to conduct track maintenance that
would result in raising the height of the tracks at four
street crossings within the City. On October 2, 2017, the
City Council denied CSXT's request. Shortly after, on
October 11, 2017, CSXT filed this lawsuit. In its Complaint,
CSXT seeks a “permanent injunction requiring that the
City refrain from any enforcement of the 1966 Ordinance or
the 1979 Agreed Order or the undertaking of any other
municipal or state law action which would seek to prevent
CSXT from raising the tracks on the Railroad Property or
otherwise interfere with CSXT railroad operations.”
(Compl. [DN 1] at 10.) That same day, CSXT filed a Motion for
Preliminary Injunction which asked the Court to
“immediately prohibit the City from taking any action
to enforce either the 1966 Ordinance or the 1979 Agreed Order
or otherwise interfere with CSXT's railroad
operations.” (Mot. for Prelim. Inj. at 11.)
matter was tried on March 1, 2018, and testimony was heard.
Afterwards, both parties briefed their positions on factual
and legal issues.
City of Sebree argues that both the 1966 Ordinance and the
1979 Agreed Order prohibit the railroad from raising the
height of the railroad tracks without express authority from
the City to do so. CSXT argues that both the 1966 Ordinance
and the 1979 Agreed Order are preempted by two different
federal statutes: the Interstate Commerce Commission
Termination Act and the Federal Railroad Safety Act.
1966, the City of Sebree passed a local ordinance that
required pre-approval by the City of any change in grade made
by the L&N Railroad at any of the street crossings in the
City. Violators are subject to a fine of not less than $50.00
per day until the unapproved change is corrected.
the successor to L&N in the operation of the rail line
which passes through Sebree. CSXT argues that this 1966
Ordinance is preempted by federal law. In 1995, Congress
passed the Interstate Commerce Commission Termination Act
(“ICCTA”) in an effort to deregulate the railroad
industry. Within the provisions of the ICCTA, a preemption
section states, “Except as provided otherwise 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). Other courts have noted that
“it is difficult to imagine a broader statement of
Congress' intent to preempt state regulatory authority
over railroad operations.” CSX Transp. Inc. v. City
of Plymouth, 92 F.Supp.2d 643, 658 (E.D. Mich. 2000)
(quoting Soo Line R.R. Co. v. Minneapolis,
38 F.Supp.2d 1096, 1099 (D. Minn. 1998)).
Texas Central Business Lines Corporation v. City of
Midlothian, the Fifth Circuit reviewed a municipal
statute much like the 1966 Ordinance. 669 F.3d 525 (5th Cir.
2012). A Texas town passed a grading ordinance setting a
maximum slope for rail embankments and roads. Id. at
529. The Fifth Circuit found that this grading ordinance was
preempted because it had the “effect of managing the
economic decisions” of the railroad company in the
context of transportation covered under the ICCTA.
Id. at 534. “[S]tate and local law cannot
govern a railroad's ...