Town Of Delafield v. Central Transport Kriewaldt

2020 WI 61

SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP2525

COMPLETE TITLE: Town Of Delafield,
Plaintiff-Appellant,
v.
Central Transport Kriewaldt,
Defendant-Respondent-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 388 Wis. 2d 179,932 N.W.2d 423
PDC No:2019 WI App 35 - Published

OPINION FILED: June 26, 2020
SUBMITTED ON BRIEFS: March 27, 2020
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Michael J. Aprahamian

JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and DALLETT,
JJ., joined. KELLY, J., filed a concurring opinion, in which
REBECCA GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-respondent-petitioner, there were briefs
filed by Pamela M. Schmidt, Michael K. Roberts, and Scopelitis,
Garvin, Light, Hanson & Feary, P.C., Milwaukee.

For the plaintiff-appellant, there was a brief filed by
Kimberly M. Kershek and Law Office of Kimberly Kershek,
Delafield.
 2020 WI 61

NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP2525
(L.C. No. 2017CV859)

STATE OF WISCONSIN : IN SUPREME COURT

Town of Delafield,

Plaintiff-Appellant,
FILED
v.
JUN 26, 2020
Central Transport Kriewaldt,
Sheila T. Reiff
Defendant-Respondent-Petitioner. Clerk of Supreme Court

HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and DALLET,
JJ., joined. KELLY, J., filed a concurring opinion, in which
REBECCA GRASSL BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed and

cause remanded.

¶1 BRIAN HAGEDORN, J. When spring finally arrives in

Wisconsin, and roadways begin to thaw from the long winter, many

municipalities impose weight limitations on certain roads

especially vulnerable to deterioration during this time. The

Town of Delafield did just that in March 2016. However, the
federal Surface Transport and Assistance Act (STAA), along with
 No. 2017AP2525

related federal regulations, limits how states may restrict road

access between interstate highways and certain destinations.

This case arose when Central Transport Kriewaldt received a

citation for operating a tractor-trailer in violation of the

Town's seasonal weight limitation authorized by its ordinance.

Central Transport contested the citation on the grounds that the

limitation was preempted, and therefore disallowed, by the STAA.

¶2 We conclude that the STAA's reach in this case

mandates only reasonable access. The Town's limitation did not

need to be grounded solely in safety considerations, as Central

Transport maintains, so long as reasonable access was provided.

The record in this case reflects that a seasonal weight

limitation is a normal restriction transport companies would be

aware of, that adequate notice of the restriction was provided,

and that a permit to travel the road was readily available. Put

together, these facts show reasonable access was provided, and

the Town's seasonal weight limitation was not preempted by the

STAA.

I. LEGAL PRINCIPLES

¶3 In order to understand Central Transport's arguments,

we need to lay some groundwork regarding preemption generally,

followed by an examination of what the STAA and related federal

regulations command. Once we establish what federal law

requires, we compare that to the Town's implementation and

enforcement of its ordinance here.

2
 No. 2017AP2525

¶4 Preemption presents a question of law we review de

novo. Partenfelder v. Rhode, 2014 WI 80, ¶25, 356 Wis. 2d 492,

850 N.W.2d 896. We conduct this analysis accepting the circuit

court's factual findings unless they are clearly erroneous.

Wis. Stat. § 805.17(2) (2017-18).1

A. Preemption Generally

¶5 The Supremacy Clause of the United States Constitution

provides: "This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof . . . shall be the

supreme Law of the Land." U.S. Const. art. VI, cl. 2.

Therefore, "state law that conflicts with federal law is

'without effect'"; it is preempted. Cipollone v. Liggett Grp.,

Inc., 505 U.S. 504, 516 (1992) (quoted source omitted).

¶6 Preemption, however, is disfavored "in the absence of

persuasive reasons——either that the nature of the regulated

subject matter permits no other conclusion, or that the Congress

has unmistakably so ordained." Chi. & N.W. Transp. Co. v. Kalo
Brick & Tile Co., 450 U.S. 311, 317 (1981) (quoted source

omitted). This presumption against preemption is particularly

strong when dealing with the historic police powers of the

state. Altria Grp., Inc. v. Good, 555 U.S. 70, 77 (2008).

Unless it is the "clear and manifest purpose of Congress," we

assume these traditional areas of state regulation are not

1 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version.

3
 No. 2017AP2525

superseded by federal law. Id. Laws purporting to preempt

state police power regulations are therefore given a "narrow

reading." Cipollone, 505 U.S. at 518.

¶7 The preemptive effect of any given federal law is

guided by Congress's purpose. Altria Grp., Inc., 555 U.S. at

76. And that purpose is discerned through the text, aims, and

structure of the federal enactment. Id. Sometimes Congress

sets forth its preemptive purpose in the text of a law itself

(express preemption). Id. Preemptive intent may also be

implied when the federal legislation occupies the legislative

field (field preemption) or results in an actual conflict with

state law (conflict preemption). Id. at 76-77.

¶8 Central Transport argues that express preemption

applies here. And in fact, § 31114(a) of the STAA expressly

provides: "A State may not enact or enforce a law

denying . . . reasonable access between" certain roads and

destinations. 49 U.S.C. § 31114(a) (2012) (emphasis added).

This is an express preemption clause. But even when Congress
expressly preempts state law, "it does not immediately end the

inquiry because the question of the substance and scope of

Congress' displacement of state law still remains." Altria

Grp., Inc., 555 U.S. at 76. The relevant question here is what

exactly this "reasonable access" prohibition means and what it

applies to. As discussed more fully below, Central Transport

argues that any restriction on access must be based on safety

considerations, and that the Town's seasonal weight limitation

4
 No. 2017AP2525

is expressly preempted because protecting the roads during the

spring thaw is not a safety-based regulation.

¶9 Central Transport argues in the alternative that the

STAA and related regulations indirectly preempt the Town's

enforcement of a seasonal weight limitation because they

actually conflict. That is, even if a seasonal weight

limitation is not expressly preempted, the Town's implementation

and enforcement of that limitation runs contrary to the

reasonable access federal law demands. Conflict preemption

occurs "when compliance with both the federal and state laws is

a physical impossibility or when a state law is a barrier to the

accomplishment and execution of Congress['s] objectives and

purposes." Hazelton v. State Pers. Comm'n, 178 Wis. 2d 776,

787, 505 N.W.2d 793 (Ct. App. 1993).

B. The STAA and Accompanying Federal Regulations

¶10 The portion of the STAA that requires states to

provide reasonable access to commercial motor vehicles is found
in 49 U.S.C. § 31114. Subsection (a) provides that a state "may

not enact or enforce a law denying to a commercial motor vehicle

subject to this subchapter or subchapter I of this chapter

reasonable access between" the interstate highway system as

described in § 31114(a)(1)2 and certain locations described in

The specifically covered interstate highways are defined
2

as: "the Dwight D. Eisenhower System of Interstate and Defense
Highways (except a segment exempted under section 31111(f) or
31113(e) of this title) and other qualifying Federal-aid Primary
System highways designated by the Secretary of Transportation."
49 U.S.C. § 31114(a)(1).
5
 No. 2017AP2525

§ 31114(a)(2) (and discussed further below). § 31114(a). This

requires some unpacking.

¶11 Section 31114(a) sets the general legal standard by

prohibiting states from denying what the law calls "reasonable

access." The prohibition applies "to a commercial motor vehicle

subject to this subchapter or subchapter I of this chapter."

Id. And subchapter I defines a "commercial motor vehicle" in

part as "a self-propelled or towed vehicle used on the highways

in commerce principally to transport passengers or cargo, if the

vehicle——(A) has a gross vehicle weight rating or gross vehicle

weight of at least 10,001 pounds, whichever is greater." 49

U.S.C. § 31101(1).3 The tractor-trailer in this case fits this

definition; it was used in commerce to transport cargo and met

the weight requirement.

3 The full definition of a "commercial motor vehicle" is:

a self-propelled or towed vehicle used on the highways
in commerce principally to transport passengers or
cargo, if the vehicle——

(A) has a gross vehicle weight rating or gross vehicle
weight of at least 10,001 pounds, whichever is
greater;

(B) is designed to transport more than 10 passengers
including the driver; or

(C) is used in transporting material found by the
Secretary of Transportation to be hazardous under
section 5103 of this title and transported in a
quantity requiring placarding under regulations
prescribed by the Secretary under section 5103.

49 U.S.C. § 31101(1).

6
 No. 2017AP2525

¶12 Section 31114(a)(2) details the potential destinations

from the highway for which states must maintain reasonable

access:

terminals, facilities for food, fuel, repairs, and
rest, and points of loading and unloading for
household goods carriers, motor carriers of
passengers, any towaway trailer transporter
combination (as defined in section 31111(a)), or any
truck tractor-semitrailer combination in which the
semitrailer has a length of not more than 28.5 feet
and that generally operates as part of a vehicle
combination described in section 31111(c) of this
title.
49 U.S.C. § 31114(a)(2). Although its grammatical clarity will

not win any awards, the sentence structure and punctuation4

suggest three separate categories of destinations:

 terminals;

 facilities for food, fuel, repairs, and rest; and

 points of loading and unloading for four specific
types of carriers:

o household goods carriers,

o motor carriers of passengers,

o any towaway trailer transporter combination (as
defined in § 31111(a)), or

o any truck tractor-semitrailer combination in
which the semitrailer has a length of not more
than 28.5 feet and that generally operates as

See Flug v. LIRC, 2017 WI 72, ¶32, 376 Wis. 2d 571, 898
4

N.W.2d 91 (relying on the "rules of grammar" to interpret a
statute); State v. Holcomb, 2016 WI App 70, ¶¶11-12, 371
Wis. 2d 647, 886 N.W.2d 100 (explaining statutory structure and
punctuation are important in statutory interpretation).

7
 No. 2017AP2525

part of a vehicle combination described in
§ 31111(c).
¶13 This reading is confirmed by the federal regulation

tied to this provision, which stands as a near word-for-word

copy of the statutory language. The regulation begins, "No

State may enact or enforce any law denying reasonable access to

vehicles with dimensions authorized by the STAA between the

[national highway network] and terminals and facilities for

food, fuel, repairs, and rest." 23 C.F.R. § 658.19(a) (2018).

The conjunction "and" separates and therefore categorizes

terminals on the one hand, and facilities for food, fuel,

repairs, and rest on the other hand.5 Notably, a period follows,

and a new sentence begins:

In addition, no State may enact or enforce any law
denying reasonable access between the [national
highway network] and points of loading and unloading
to household goods carriers, motor carriers of
passengers, and any truck tractor-semitrailer
combination in which the semitrailer has a length not
to exceed 28 feet (28.5 feet where allowed pursuant to
§ 658.13(b)(5) of this part) and which generally
operates as part of a vehicle combination described in
§§ 658.13(b)(5) and 658.15(a) of this part.
Id. This confirms that the last category of destinations,

including its specific application to certain truck tractor-

semitrailer combinations, is separate and apart from the other

categories of destinations: terminals and facilities for food,

fuel, repairs, and rest.

5See State v. Arberry, 2018 WI 7, ¶19, 379 Wis. 2d 254, 905
N.W.2d 832 (explaining "[w]ords are to be given the meaning that
proper grammar and usage would assign them" (quoted source
omitted)).

8
 No. 2017AP2525

¶14 As it did before the court of appeals, Central

Transport contends that its destination was a terminal. In

response, the Town inverts the language of 49 U.S.C. § 31114 and

argues that the four types of carriers enumerated to carry goods

to "points of loading and unloading" are also the only carriers

covered by the statute when traveling to "terminals" and

"facilities for food, fuel, repairs, and rest." As explained

above, this is incorrect as a matter of statutory construction.

The Town develops no further argument to directly contest that

Central Transport's attempted destination was a terminal. The

Town took the same approach below, leading the court of appeals

to assume without deciding Central Transport's tractor-trailer

was traveling to a terminal. See Town of Delafield v. Cent.

Transp. Kriewaldt, 2019 WI App 35, ¶5 n.2, 388 Wis. 2d 179, 932

N.W.2d 423. Without the benefit of a contested argument on this

point, we too assume without deciding the attempted destination

was a terminal and therefore covered by the STAA.

¶15 The destination distinction is also important in light
of Central Transport's arguments based on 49 U.S.C. § 31114(b),

which is denominated an "exception" to the STAA's general

reasonable access requirement under § 31114(a). It provides:

Exception.——This section does not prevent a State or
local government from imposing reasonable
restrictions, based on safety considerations, on a
truck tractor-semitrailer combination in which the
semitrailer has a length of not more than 28.5 feet
and that generally operates as part of a vehicle
combination described in section 31111(c) of this
title.

9
 No. 2017AP2525

§ 31114(b). By its plain language, this exception only applies

to a certain type of vehicle, "a truck tractor-semitrailer

combination in which the semitrailer has a length of not more

than 28.5 feet and that generally operates as part of a vehicle

combination described in section 31111(c) of this title." Id.

That language exactly mirrors one of the types of carriers under

§ 31114(a)(2) that may not be denied access to points of loading

or unloading.6 In the context of an already announced general

reasonable access requirement, this exception appears to give

states the authority to impose additional reasonable, safety-

based restrictions on vehicles meeting this specific profile.

¶16 Central Transport has a different take. It asks this

court to read the STAA's reasonable access requirement narrowly

to only permit restrictions based on safety considerations. In

other words, rather than a general reasonable access requirement

that seems apparent from the text of 49 U.S.C. § 31114(a),

Central Transport posits that § 31114(b) requires all

restrictions on access to be based on safety, and safety alone.
It asks us to rule in its favor in part on the grounds that the

seasonal weight limitation authorized by state law and the

And "absent textual or structural clues to the contrary" a
6

particular word or phrase used more than once in the same act is
understood "to carry the same meaning each time." State ex rel.
DNR v. Wis. Court of Appeals, Dist. IV, 2018 WI 25, ¶30, 380
Wis. 2d 354, 909 N.W.2d 114.

10
 No. 2017AP2525

Town's ordinance was not a safety-based restriction and is

therefore expressly preempted by and in conflict with the STAA.7

¶17 This argument does not hold water under a plain

reading of the text. Nothing in 49 U.S.C. § 31114(b) suggests

all local restrictions on access to statutorily protected

destinations must be based on safety considerations. Rather

§ 31114(b) plainly authorizes additional safety-based

7For purposes of our examination, the Town's ordinance
adopts Wis. Stat. § 348.17(1), which provides:

No person, whether operating under a permit or
otherwise, shall operate a vehicle in violation of
special weight limitations imposed by state or local
authorities on particular highways, highway structures
or portions of highways when signs have been erected
as required by [Wis. Stat. §] 349.16(2) giving notice
of such weight limitations, except when the vehicle is
being operated under a permit expressly authorizing
such weight limitations to be exceeded or is being
operated as authorized under sub. 4.

The corresponding Town of Delafield, Wis. Ordinance § 7.01(1)
provides:

STATUTORY REGULATIONS. Except as otherwise
specifically provided in this chapter, all provisions
of Chs. 340 to 348, Wis. Stats., describing and
defining regulations with respect to vehicles and
traffic for which the penalty is a forfeiture only,
including penalties to be imposed and procedures for
prosecution, are hereby adopted and by reference made
a part of this chapter as if fully set forth herein.
Any act required to be performed or prohibited by any
statute incorporated herein by reference is required
or prohibited by this chapter. Any further
amendments, revisions or modifications of statutes
incorporated herein are intended to be made part of
this chapter in order to secure uniform statewide
regulation of traffic on the highways, streets and
alleys.

11
 No. 2017AP2525

restrictions on certain types of vehicles. If Congress intended

to do what Central Transport suggests, it would have placed the

safety-based language in § 31114(a), not created an exception in

a separate subsection. The primary statutory standard for all

covered vehicles and destinations is reasonable access.

¶18 The First Circuit Court of Appeals held likewise in

affirming a district court's conclusion that a zoning ordinance

limiting nighttime access to and from a local trucking terminal

was not preempted. N.H. Motor Transp. Ass'n v. Town of

Plaistow, 67 F.3d 326 (1st Cir. 1995). The argument there, as

here, was primarily that the restriction was not allowable

because it was not based on safety. Id. at 329.

¶19 Looking to the statute as a whole, the First Circuit

observed that the reasonable access mandate extends far and wide

to many local roads. Id. at 330. Disallowing local

restrictions other than those based on safety "miles away from

any interstate or national network highway" would not be

consistent with the apparent goals of the federal law. Id.
Instead, as the court explained, communities have many

legitimate interests outside of safety——assuring quiet in a

hospital zone, for example. Id. "It is difficult to conceive

that Congress meant to exclude such a concern from the calculus

used to determine whether a restriction infringes on 'reasonable

access' to the federal highway system." Id.

¶20 The court further pointed to the text itself, along

with the statutory history, as contrary to a safety-only
reading, explaining: "the original 1982 Surface Act contained
12
 No. 2017AP2525

the reasonable access language with no exception provision; so

nothing in 1982 suggested that state access restrictions were

limited to those based on safety." Id. The safety-based

exception, added in 1984, is not worded in such a way and does

not appear calculated to impose far more dramatic restrictions

on local regulation. Id.; Tandem Truck Safety Act of 1984, Pub.

L. No. 98-554, § 106 (codified as amended at 49 U.S.C. § 2312

(1988)).8 In short, "[s]afety is obviously a paramount reason

for limiting access; but, in our view, it is not the only reason

permitted by Congress." N.H. Motor Transp. Ass'n, 67 F.3d at

331.

¶21 The Seventh Circuit has echoed this same

understanding. Under 49 U.S.C. § 31114, "states are still free

to exercise their police powers over state highways and local

roads, so long as these regulations do not impede 'reasonable

access' for commercial motor vehicles traveling between the

Interstate and places such as terminals." Aux Sable Liquid

Prods. v. Murphy, 526 F.3d 1028, 1036 (7th Cir. 2008). The
Seventh Circuit explicitly rejected the notion that permissible

state or local restrictions must be based on safety, agreeing

with the First Circuit's decision in New Hampshire Motor

This section was later renumbered from 49 U.S.C. § 2312 to
8

49 U.S.C. § 31114. See Act of July 5, 1994, Pub. L. No. 103-
272.

13
 No. 2017AP2525

Transport Ass'n.9 Id. at 1036 n.4. The proper interpretation of

"§ 31114(a) is that states may exercise their police powers for

any number of reasons, so long as reasonable access is

provided." Id.

¶22 The statutory text and context, federal regulations,

and federal circuit court caselaw reject a limitation on local

restrictions based solely on safety concerns.10 The traditional

power of state and local governments to regulate travel over

local roads remains so long as reasonable access is not denied.

Central Transport's argument that the Town's ordinance

authorizing seasonal weight limitations is expressly preempted

based on its safety-focused reading of the STAA is incorrect.11

9A federal regulation further limits imposing restrictions
within one mile from the national highway network to "specific
safety reasons." 23 C.F.R. § 658.19(d). This constraint is not
applicable in this case as the Town's seasonal weight limitation
was implemented more than one mile away from the interstate.
See Aux Sable Liquid Prods. v. Murphy, 526 F.3d 1028, 1036 n.4
(7th Cir. 2008).

Only two federal circuit courts have addressed this
10

question. See Aux Sable Liquid Prods., 526 F.3d at 1036 n.4;
N.H. Motor Transp. Ass'n v. Town of Plaistow, 67 F.3d 326, 331
(1st Cir. 1995). Prior to these decisions, several federal
district courts concluded differently. See A.B.F. Freight Sys.,
Inc. v. Suthard, 681 F. Supp. 334, 345 (E.D. Va. 1988); N.Y.
State Motor Truck Ass'n Inc. v. City of New York, 654 F.
Supp. 1521, 1539 (S.D.N.Y. 1987); Consol. Freightways Corp. of
Del. v. Larson, 647 F. Supp. 1479, 1492 (M.D. Pa. 1986),
reversed on other grounds, 827 F.2d 916 (3d Cir. 1987).

We therefore need not determine whether an express
11

limitation placed on a "State," such as the one found in 49
U.S.C. § 31114(a), extends to local governments such as the
Town. See also Aux Sable Liquid Prods., 526 F.3d at 1034 n.3
(raising the same question, but determining deciding it was
unnecessary).

14
 No. 2017AP2525

Any conflict preemption analysis on these grounds likewise

fails. The specific conflict preemption question remaining in

light of the facts of this case is whether Central Transport was

denied reasonable access to its destination.

II. CENTRAL TRANSPORT WAS AFFORDED REASONABLE ACCESS

¶23 As we have explained, the preemption question under 49

U.S.C. § 31114, and the specific challenge brought by Central

Transport, is fact-specific. Although states are not permitted

to "define the term however they see fit," the broad and

undefined phrase "reasonable access" reflects "a recognition on

Congress's part that the manner and degree of access to and from

the Interstate necessary to protect Congress's overarching goal

of uniformity for commercial motor vehicles utilizing the

Interstate will vary across the country." See Aux Sable Liquid

Prods., 526 F.3d at 1036. "Our task is 'to determine whether,

under the circumstances of this particular case, [the Town's

ordinance] stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.'"

MITE Corp. v. Dixon, 633 F.2d 486, 491 (7th Cir. 1980) (quoted

source omitted). "This inquiry requires us to consider the

relationship between state and federal laws as they are

interpreted and applied, not merely as they are written." Id.

In that spirit, we turn to the facts precipitating this

litigation, and the Town's implementation of its seasonal weight

limitation.

15
 No. 2017AP2525

¶24 On Monday, March 7, 2016, a Waukesha County deputy

sheriff cited Central Transport for violating the Town's

seasonal weight limitation when one of its drivers operating a

tractor-trailer was on his way to deliver art supplies. After

the Lake County Municipal Court assessed a forfeiture in the

amount of $1,532.50, Central Transport appealed to the circuit

court. The circuit court conducted a bench trial and granted

Central Transport's motion to dismiss on preemption grounds.12

The court of appeals reversed, concluding the Town's limitation

afforded reasonable access and was not preempted. Cent. Transp.

Kriewaldt, 388 Wis. 2d 179, ¶6. We granted Central Transport's

petition for review.

¶25 While the circuit court made few factual findings, the

relevant record is based on the testimony of the deputy sheriff

who issued the citation and the Town's highway department

superintendent. This testimony was unrebutted; Central

Transport offered no witnesses or evidence at the trial. The

record reflects the following.
¶26 In 2016, the Town's seasonal weight limitation went

into effect when the superintendent believed, based on

conditions on the ground during the spring thaw, that excess

weight left certain roads particularly vulnerable to damage.

The limitation prohibited vehicles weighing over six tons from

traveling on certain Town roads. The record is clear that

The Honorable Michael
12 J. Aprahamian, Waukesha County
Circuit Court, presided.

16
 No. 2017AP2525

Central Transport's offending tractor-trailer weighed more than

six tons and traveled on roads where the weight limitation

applied.13 The limitation was imposed on Monday, March 7, and

remained in effect until Friday, March 11.14 The Town provided

notice of the limitation through free-standing road signs posted

on Friday, March 4. It was also the Town's practice to post the

seasonal weight limitation on its website and in a local paper.

¶27 Despite this one-week weight limitation, the Town's

roads were not off limits. The Town offered permits that

allowed overweight vehicles to drive on otherwise restricted

roads. A permit could be obtained by calling the Town and going

into the superintendent's office. The superintendent would then

issue a temporary permit along with a route the driver needed to

take to minimize travel on restricted roads. The superintendent

testified that, to his knowledge, he never denied a request for

a permit in the fifteen years he served in his role. He also

explained that many companies would call the Town to inquire if

the seasonal weight limitation was in effect. The Waukesha

The superintendent and the deputy sheriff who issued the
13

citation offered conflicting testimony with respect to whether
the weight limitation was in effect on the specific intersection
where the tractor-trailer was found. Regardless, no party
disputes that the tractor-trailer at some point traveled on a
road with the noticed weight limitation in effect.

The Town had no independent records regarding when the
14

2016 limitation was posted or the period it was in effect; the
records were lost in moving to a new office. However, the
superintendent based his testimony on when the City of Pewaukee
posted its seasonal weight limitation because the Town and City
coordinated the implementation of their seasonal weight
limitations.

17
 No. 2017AP2525

County Sheriff's Office, according to testimony from the deputy

sheriff who issued the citation, also received phone calls

inquiring if any seasonal weight limitations were in effect in

the county. While the posted signs did not say anything about

the permitting process,15 the website included information

regarding how to obtain a permit to travel on weight-limited

roads and the phone number for the superintendent.

¶28 We read this record to reflect that at the time

Central Transport received its citation, seasonal weight

limitations were normal and known for those making commercial

deliveries during that time of year in Wisconsin. Calls to the

highway department or sheriff's office to determine the nature

and effective date of any limitations were likewise commonplace.

The record also indicates that Central Transport's truck could

have obtained a permit to reach its destination, and if past is

prologue, likely would have received one if so requested.16

The posted signs provided:
15 "TEMPORARY BY ORDER OF THE
TOWN OF DELAFIELD WEIGHT LIMIT 6 TONS."

Central
16 Transport contends that the potential of
patchwork seasonal weight limitations ranging in time, duration,
and scale presents too much of a burden for commercial trucking
outfits, especially those, like Central Transport, that do not
travel regularly in the area. However, Central Transport
presented no evidence at trial to substantiate those arguments.
Our decision here must be made in light of and specific to the
facts presented at trial. Our decision is not a review of the
Town's seasonal weight limitation generally, nor is it an
opinion regarding seasonal weight limitations that might be
imposed by other state and local governments. We review only
the Town's application under this record and in this instance.

18
 No. 2017AP2525

¶29 Taken together, we conclude the specific facts of this

case demonstrate that Central Transport had reasonable access to

its destination. Central Transport's driver could have checked

the website or called ahead to determine whether any

restrictions were in effect. Or, upon seeing the seasonal

weight limitation was posted, the driver could have contacted

the Town, driven to the office, and obtained a permit that would

have allowed the tractor-trailer to lawfully traverse necessary

roads. The weight limitation was also based on a reasonably

tailored and well-founded police power consideration——damage to

roads that were especially vulnerable during the spring thaw.

¶30 While such a system did not provide Central Transport

unfettered access to its delivery point, it also did not

prohibit all access. Cf. Aux Sable Liquid Prods., 526 F.3d at

1037 (holding that a weight restriction prohibiting all access

to a road was not reasonable access); N.H. Motor Transp. Ass'n,

67 F.3d at 329, 331 (concluding that a limitation of access at

night, in the interest in curbing noise, odor, and dust in
residential areas, granted reasonable access). The weight-

limited roads were, plainly put, reasonably accessible through a

readily available permit process.17 Central Transport had a

17Central Transport argues a scheme where permits are
always granted would have no purpose and is not reasonable. But
a weight limitation would surely discourage and deter
unnecessary driving on subject roads. The permit system
represented in the record before us would also give a Town-
prescribed route for drivers to take that would minimize road
damage while still allowing drivers to reach their destination.

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reasonable means of getting from the highway to its destination,

the main concern of the STAA. In light of the presumption that

the state retains its police powers, and that this federal

restriction should be read narrowly, we conclude the

implementation and enforcement of the Town's ordinance, which

Central Transport admits it violated, does not conflict with and

therefore was not preempted by the STAA and its related

regulations.

III. CONCLUSION

¶31 Central Transport's tractor-trailer had reasonable

access from the highway to its intended destination when it was

cited for violating the Town's seasonal weight limitations on

certain Town roads as authorized by the Town's ordinance. The

facts of this case demonstrate Central Transport could have

lawfully made its delivery by obtaining a permit, which was

readily available. Therefore, the Town's implementation of its

weight-limit ordinance in 2016 was not preempted by the STAA,
and the citation was permissibly issued to Central Transport.

This cause is remanded to the circuit court for further

proceedings consistent with this opinion.

By the Court.—The decision of the court of appeals is

affirmed and the cause is remanded to the circuit court.

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¶32 DANIEL KELLY, J. (concurring). A truck driver for

Central Transport Kriewaldt ("Central Transport") was delivering

goods to a customer at a residential address when he was

ticketed for violating the Town of Delafield's seasonal

permitting system. Central Transport says Delafield may not

have such a system because it interferes with its "reasonable

access" between an interstate freeway and a "terminal" in

violation of 49 U.S.C. § 31114 (2012) (the Surface

Transportation Assistance Act ("STAA")). The court's opinion

promised it would determine whether the seasonal permitting

system is consistent with the STAA, but its analysis stopped

well short of its goal. So although I concur with the court's

judgment, I have a different reason for doing so.

¶33 The goal the court set for itself was not an easy one.

In fact, unlocking the meaning of "reasonable access" is a bit

of a paradox, which was succinctly described in Aux Sable Liquid

Prod. v. Murphy, 526 F.3d 1028 (7th Cir. 2008). There, the

court recognized that Congress had made a decision "not to
define 'reasonable access' more specifically." Id. at 1036.

But this, it said, was not an invitation for states "to define

the term however they see fit" because "[i]f states were truly

left to define this term on their own, the express preemption

language in § 31114(a) would be rendered effectively

meaningless, since states would be able to define 'reasonable

access' so as to allow state and local authorities to severely

impede commercial motor vehicles' access to the Interstate."
Id. at 1036, 1035. And that would destroy the uniformity the

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STAA was created to achieve. That's one side of the paradox.

Here's the other:

[T]his broad language can be viewed as reflecting a
recognition on Congress's part that the manner and
degree of access to and from the Interstate necessary
to protect Congress's overarching goal of uniformity
for commercial motor vehicles utilizing the Interstate
will vary across the country depending on factors such
as whether the Interstate is cutting across rural or
metro areas, traffic density on the road, and other
considerations.
Id. at 1036. So, at least according to Aux Sable Liquid Prod.,

the STAA requires "uniformity for commercial motor vehicles

utilizing the Interstate" (meaning states may not define

"reasonable access" for themselves), but the uniformity will

"vary across the country." Id. I'm not saying that circle

can't be squared, but finding the edges requires work that the

majority opinion simply didn't do.

¶34 I suppose the easiest response to a paradox is to

ignore it, and that seems to have been our choice today. The

court says Delafield's seasonal permitting process was

reasonable, but did so without discussing, or even

acknowledging, the uniformity mandate that is the motivating

rationale for the STAA's existence. Instead, we discussed the

benefits of the permitting system and made some case-specific

observations such as that "seasonal weight limitations were

normal and known for those making commercial deliveries during

that time of year in Wisconsin[]"; that permits could be

obtained on a 24/7 basis; and that a permit has never been
denied. Majority op., ¶28. And the court's conclusion was

explicitly case-specific: "[T]he specific facts of this case
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demonstrate that Central Transport had reasonable access to its

destination." Id., ¶29.

¶35 If we had been given explicit authority to develop our

own, state-specific definition of "reasonable access," I don't

know how it would differ from what we accomplished today. Every

consideration used to assess whether the permitting system

interfered with "reasonable access" comprised nothing but our

own sense of what is reasonable. We made no effort to

demonstrate how this would fit into the Congressionally-mandated

"uniform standards for commercial motor vehicles,"1 or even what

the points of reference for such an analysis would be. What we

are left with, therefore, is the Wisconsin Supreme Court's own

sense of what "reasonable access" entails. That may or may not

also be consistent with the uniformity required by the STAA, but

nothing in our opinion explains why it might be. Therefore, the

court didn't finish the analysis, and so I cannot join it.

¶36 I reach the same conclusion as the court, however, for

a more straightforward reason. Central Transport had recourse
to the STAA for the purpose of striking down the ordinance that

was the source of authority for Delafield's citation. As the

proponent of this proposition, it bore the burden of

establishing that the STAA preempted that ordinance. See, e.g.,

Sausen v. Town of Black Creek Bd. of Review, 2014 WI 9, ¶19, 352

Wis. 2d 576, 843 N.W.2d 39 (quoting Loeb v. Bd. of Regents, 29

1Aux Sable Liquid Prod. v. Murphy, 526 F.3d 1028, 1036 (7th
Cir. 2008).

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Wis. 2d 159, 164, 138 N.W.2d 227 (1965)) ("[A] party seeking

judicial process to advance his position carries the burden of

proof[.]"); see also Upper Lakes Shipping, Ltd. v. Seafarers' I.

Union, 22 Wis. 2d 7, 17, 125 N.W.2d 324 (1963).

¶37 The first step in such an undertaking is establishing

that the route it was driving was covered by the federal

statutes. The STAA is applicable to travel between certain

interstate highways (of which Interstate 94 is one) and

terminals, facilities for food, fuel, repairs, and
rest, and points of loading and unloading for
household goods carriers, motor carriers of
passengers, any towaway trailer transporter
combination (as defined in section 31111(a)), or any
truck tractor-semitrailer combination in which the
semitrailer has a length of not more than 28.5 feet
and that generally operates as part of a vehicle
combination described in section 31111(c) of this
title.
49 U.S.C. § 31114(a)(2). This provision describes two

categories of potential destinations. The first is narrow,

comprising only "terminals, facilities for food, fuel, repairs,

and rest," but it contains no limitations on the types of
carriers traveling to those destinations. Id. The second

category of potential destinations is much broader; it

encompasses all "points of loading and unloading." Id. But

this category applies only to a subset of carriers defined as

"household goods carriers, motor carriers of passengers, any

towaway trailer transporter combination (as defined in section

31111(a)), or any truck tractor-semitrailer combination in which

the semitrailer has a length of not more than 28.5 feet and that

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generally operates as part of a vehicle combination

[colloquially known as a single 'pup' trailer]." Id.

¶38 For the STAA to apply in this case, therefore, Central

Transport had to describe where it fit in the matrix of

destinations and carrier types. It settled on the claim that

its truck was headed to a "terminal" when its driver was

ticketed. But the claimed "terminal" was a residence. At least

two federal courts have noted that not every delivery address is

a "terminal" within the meaning of the STAA: "Points of loading

and unloading, unlike locations of terminals, necessarily change

with great frequency and are dependent upon the locations of the

customers serviced by trucking companies." A.B.F. Freight Sys.,

Inc. v. Suthard, 681 F.Supp. 334, 344 (E.D. Va. 1988) (quoting

Consolidated Freightways v. Larson, 647 F.Supp. 1479, 1494 (M.D.

Pa. 1986). So although every terminal is a place of loading and

unloading, not every place of loading and unloading is a

terminal.2 If it were not so, there would be no point in

describing the two categories of destinations.

2 See, e.g., 23 C.F.R. § 658.19(a):

No State may enact or enforce any law denying
reasonable access to vehicles with dimensions
authorized by the STAA between the NN and terminals
and facilities for food, fuel, repairs, and rest. In
addition, no State may enact or enforce any law
denying reasonable access between the NN and points of
loading and unloading to household goods carriers,
motor carriers of passengers, and any truck tractor-
semitrailer combination in which the semitrailer has a
length not to exceed 28 feet (28.5 feet where allowed
pursuant to § 658.13(b)(5) of this part) and which
generally operates as part of a vehicle combination
described in §§ 658.13(b)(5) and 658.15(a) of this
part.
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¶39 Unfortunately, everyone seems to have just assumed

that a residence qualifies as a terminal within the meaning of

49 U.S.C. § 31114(a)(2). The circuit court did not address this

question. The court of appeals candidly admitted it wasn't

deciding it either. Town of Delafield v. Cent. Transp.

Kriewaldt, 2019 WI App 35, ¶5 n.2, 388 Wis. 2d 179, 932 N.W.2d

423 ("Because the Town develops no argument challenging Central

Transports' position that the residence where the art supplies

were to be delivered constitutes a 'terminal,' we assume,

without deciding, that it does."). Nor did we choose to take it

up.3 When a party fails to contest an opponent's proposition, we

quite frequently take it as admitted and proceed with our

analysis accordingly. But we don't discern the meaning of

statutory terms based on whether the parties choose to contest

them. We have an independent duty to ensure our understanding

of the statute is accurate. A "terminal" does not encompass a

residential address simply because Delafield chose not to

contest Central Transport's assertion.
¶40 I think we should have resolved this case based on

Central Transport's failure to establish that its destination

was a terminal. This is important because what constitutes

"reasonable access" could be very different depending on which

of the STAA-defined categories of destinations we are

(Emphasis added.)

See majority op., ¶14 ("Without the benefit of a contested
3

argument on this point, we too assume without deciding the
attempted destination was a terminal and therefore covered by
the STAA.").

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considering. The categories don't appear to be arbitrary——they

describe very different types of places that are likely to be

present in very different parts of a town, village, or city.

Terminals (that is, fixed points of cargo transfer) as well as

places where commercial truckers go for food, fuel, repairs, and

rest are generally physically concentrated near interstate

freeways, and are consequently served by a more robust

infrastructure. The types of destinations described in the

second category can be anywhere, including residential

neighborhoods and other sensitive areas (such as near hospitals,

playgrounds, etc.) where the infrastructure may not be as

sturdy. What constitutes "reasonable access" for one category

of destinations may be entirely unreasonable for the other. But

because we just assumed Central Transport's destination was a

terminal, our pronouncement on "reasonable access" applies to

both without the benefit of ever considering what relevant

distinctions might exist between the two categories. This is

especially problematic in light of the paradox that Delafield's
ordinance (if covered by the STAA) must be in some manner in

keeping with uniform standards. Presumably, those uniform

standards will vary depending on the category of destinations to

which they apply.

¶41 For these reasons, I respectfully concur in the

court's judgment, but I do not join the opinion.

¶42 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this concurrence.

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