New Orleans & Gulf Coast Railway Co. v. Barrois

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
June 25, 2008
No. 06-31142
Charles R. Fulbruge III
Clerk
NEW ORLEANS & GULF COAST RAILWAY COMPANY,

Plaintiff - Appellant,
v.

ANGEL MARINOVICH BARROIS; DARREN J BARROIS; BECKY HINGLE
KALISZESKI; JASON C KALISZESKI; BRADY J MILLER; TRACY
WINDHAM MILLER; BETTY ST GERMAIN NELSON; KEVIN A NELSON;
JERRY J RAYBORN, SR; LAWRENCE JOSEPH TILLOTSON; PATRICIA
LERILLE TILLOTSON; FURNITURE MART - REAL ESTATE HOLDINGS
LLC; CAROL PLAISANCE GAINEY; LEONARD JOURDAN, JR; BRUCE
KENNAIR; TAMMY L KENNAIR; ANN FROST KOEN; EARL HERMAN
KOEN, JR; SANDRA R RABALIAS; MARTHA RIDDLE; WINNIE L SOULE;
MARIE VERDIN SOULET; RENE SOULET; DAWN P TREADWAY; JOHN
W TREADWAY; CARL STEVEN WOODALL; ROBIN MEYER WOODALL,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of Louisiana

Before REAVLEY, SMITH, and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
The plaintiff-appellant New Orleans & Gulf Coast Railway Company
(“NOGCR” or the “Railroad”) brought this action to prevent the defendants-
appellees, a collection of Louisiana property owners (the “Landowners”), from
installing or using private, at-grade railroad crossings, which the Railroad has
not authorized, but which Louisiana state property law allegedly has. The
 No. 06-31142

district court dismissed the case for lack of subject matter jurisdiction. We
AFFIRM.

I
NOGCR is a short-line railroad company that operates in Louisiana. The
Landowners are the owners of enclosed estates, a group of Louisiana property
owners whose only access from their estates to any public road is blocked by the
Railroad’s tracks. This dispute involves the right of the Landowners to cross the
Railroad’s tracks to reach these public roads.
Article 689 of the Louisiana Civil Code permits the owner of an estate with
no access to a public road to claim a right of passage over neighboring property
to the nearest public road in exchange for indemnity. LA. CIV. CODE art. 689.
With this Louisiana authority as background, the Landowners have built
private, at-grade1 railroad crossings of various types and quality over the
Railroad’s tracks.2
The Railroad seeks to regulate these private crossings and has attempted
to require the Landowners to obtain Railroad-issued permits, at some cost, to
construct and operate the crossings. According to the Railroad, these private
crossings impose substantial burdens on the Railroad in terms of both cost and
safety. The crossings supposedly make it more difficult and thus more costly for
the Railroad to upgrade, maintain, and monitor its tracks. The Railroad claims
that it has incurred expense in correcting and improving the substandard
workmanship of some of these crossings and repairing damage to the tracks
caused by these crossings. The crossings also allegedly make it difficult for the

1
An “at-grade” crossing is a crossing at the level of the tracks, as opposed to, for
example, a crossing via bridge or tunnel.
2
In its complaint, NOGCR alleges that it assumed control of the railroad in 1999 and
that, at that time, its 24 miles of tracks were burdened by over 270 private crossings. This
lawsuit seeks relief against only a handful of those crossings, 12 total.

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Railroad to comply with various federal regulations governing railroad operation
and safety. In short, these private crossings increase the Railroad’s operating
costs, imposing what the Railroad characterizes in its complaint as “onerous
economic requirements on NOGCR’s railroad operations.”
As a result, the Railroad brought this action in federal court seeking
injunctive and declaratory relief either to prohibit or regulate these private
crossings, which the Railroad allegedly has not permitted. In its complaint, the
Railroad sought a permanent injunction ordering the Landowners to “cease and
desist from their continuing trespass and intrusion upon its right-of-way and
interference with railroad operations by use of unauthorized and substandard
crossings.” Further, as part of its prayer for relief, the Railroad sought to
prohibit private railroad crossings “without [its] express written permission.”
The Railroad also sought a declaratory judgment that, in short, its right-of-way
in the Railroad vis-à-vis Louisiana state law was superior to any claimed right
of passage by the Landowners. Moreover, the Railroad sought a declaration
that Louisiana Civil Code Article 689, the basis for the Landowners’ claimed
right of passage, was preempted by federal law, specifically the Interstate
Commerce Commission Termination Act (“ICCTA”), the Federal Railroad Safety
Act (“FRSA”), and the Commerce Clause.
Some time after the Railroad filed its declaratory judgment action, one of
the defendants in the case, Jerry J. Rayborn, Sr., filed an action against the
Railroad in Louisiana state court seeking a temporary restraining order, a
preliminary injunction, and a permanent injunction to prevent the Railroad from
interfering with the private railroad crossings located on Rayborn’s property.
The Louisiana state court granted a temporary restraining order that prevented
the Railroad from barricading or removing Rayborn’s two existing private
crossings, which provided the Rayborn property with access to a public road.
The order also required Rayborn to post a $2,500 bond. The Railroad removed

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Rayborn’s case to federal court, where the case was consolidated with the
Railroad’s declaratory judgment action, while the temporary restraining order
remained in effect.
Before the district court, the Railroad asserted jurisdiction based both on
the presence of a federal question and diversity, 28 U.S.C. §§ 1331 and 1332.
Regarding federal question jurisdiction, the Railroad claimed that the case was
one “arising under” the Constitution and laws of the United States because two
federal statutes, the ICCTA and the FRSA, and the Constitution’s Commerce
Clause preempted the inconsistent Louisiana state law authorizing the railroad
crossings. The district court rejected these claims, dismissing the Railroad’s
declaratory judgment action for lack of subject matter jurisdiction and, for the
same reason, remanding the Rayborn action to the Louisiana state court.
The Railroad now appeals. The Railroad does not, however, appeal the
district court’s Commerce Clause or diversity jurisdiction rulings. Rather, the
Railroad’s appeal focuses on its claim that federal jurisdiction is proper under
28 U.S.C. § 1331 because it seeks injunctive relief based on a federal statute,
because of the completely preemptive force of the ICCTA and the FRSA, and
because the case otherwise presents a substantial federal question.

II
We review a district court’s determination of subject matter jurisdiction
de novo. PCI Transp., Inc. v. Forth Worth & W. R.R. Co., 418 F.3d 535, 540 (5th
Cir. 2005) (quoting Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir.
2003)). The district court “has the power to dismiss for lack of subject matter
jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).

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Jurisdictional findings of fact are reviewed for clear error. Krim v. pcOrder.com,
Inc., 402 F.3d 489, 494 (5th Cir. 2005). The party seeking to assert federal
jurisdiction, in this case the Railroad, has the burden of proving by a
preponderance of the evidence that subject matter jurisdiction exists. See
Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001); Paterson v.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
However, pursuant to 28 U.S.C. § 1447(d), we lack jurisdiction to entertain
an appeal of a district court’s remand order when that order is based on, among
other things, lack of subject matter jurisdiction. Things Remembered, Inc. v.
Petrarca, 516 U.S. 124, 127–28 (1995); Schexnayder v. Entergy Louisiana, Inc.,
394 F.3d 280, 283 (5th Cir. 2004); see also Thermtron Prods., Inc. v.
Hermansdorfer, 423 U.S. 336, 351 (1976) (“[T]o prevent delay in the trial of
remanded cases by protracted litigation of jurisdictional issues, Congress
immunized from all forms of appellate review any remand order issued on the
grounds specified in § 1447(c), whether or not that order might be deemed
erroneous by an appellate court.” (citation omitted)).
Therefore, under § 1447(d), we lack jurisdiction to consider the district
court’s remand order for lack of subject matter jurisdiction, and we DISMISS
that portion of the appeal challenging the district court’s decision to remand the
Rayborn action to state court.

III
Turning to the declaratory judgment action, the Railroad presents four
arguments why the district court erred in dismissing its case for lack of subject
matter jurisdiction. First, the Railroad argues that federal question jurisdiction
is established because it seeks injunctive relief against an allegedly preempted
state law or regulation. Second, relying on the complete preemption doctrine,
the Railroad argues that the ICCTA preempts any state law claim to a right of

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passage over the Railroad’s tracks, rendering such a claim either wholly federal
or nothing at all. Third, the Railroad argues that the FRSA also completely
preempts any state law claim to a right of passage. Fourth, the Railroad argues
that a substantial and disputed federal question underlies its complaint, thus
establishing federal question jurisdiction. We consider and reject each of these
claims below.

A
The Railroad first argues that federal question jurisdiction is established
because it seeks declaratory and injunctive relief from state regulation on the
ground that the state regulation is preempted by federal law.
The federal question statute, 28 U.S.C. § 1331, provides district courts
with “original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.” To determine whether a case is one
“arising under” federal law for these purposes, we ordinarily apply the well-
pleaded complaint rule. PCI Transp., 418 F.3d at 543; Hoskins, 343 F.3d at 772.
Pursuant to the well-pleaded complaint rule:
[W]hether a case is one arising under the Constitution or a law or
treaty of the United States, in the sense of the jurisdictional
statute, . . . must be determined from what necessarily appears in
the plaintiff’s statement of his own claim in the bill or declaration,
unaided by anything alleged in anticipation of avoidance of defenses
which it is thought the defendant may interpose.
Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal.,
463 U.S. 1, 10 (1983) (alterations in original) (quoting Taylor v. Anderson, 234
U.S. 74, 75–76 (1914)); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 672
(1950). The well-pleaded complaint rule focuses on whether the plaintiff has
affirmatively alleged a federal claim, thus providing a basis for federal
jurisdiction; anticipated or potential defenses, including defenses based on
federal preemption, do not provide a basis for federal question jurisdiction. PCI

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Transp., 418 F.3d at 543 (citing Beneficial Nat’l Bank v. Anderson, 539 U.S. 1,
6 (2003)); see also Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (“[I]t is
now settled law that a case may not be removed to federal court on the basis of
a federal defense, including the defense of pre-emption, even if the defense is
anticipated in the plaintiff’s complaint, and even if both parties concede that the
federal defense is the only question truly at issue.”).
Where, as here, a plaintiff brings a declaratory judgment claim pursuant
to 28 U.S.C. §§ 2201 and 2202, in applying the well-pleaded complaint rule we
ask whether “if the declaratory judgment defendant brought a coercive action to
enforce its rights, that suit would necessarily present a federal question.”
Franchise Tax Bd., 463 U.S. at 19; TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676,
681 (5th Cir. 1999). A plaintiff cannot evade the well-pleaded complaint rule by
using the declaratory judgment remedy to recast what are in essence merely
anticipated or potential federal defenses as affirmative claims for relief under
federal law. See TTEA, 181 F.3d at 681 (stating that “an anticipatory federal
defense is insufficient for federal jurisdiction”) (citing Louisville & Nashville
R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)). “Where the complaint in an action
for declaratory judgment seeks in essence to assert a defense to an impending
or threatened state court action, it is the character of the threatened action, and
not of the defense, which will determine whether there is federal-question
jurisdiction. . . .” Pub. Serv. Comm’n of Utah v. Wycoff Co., Inc., 344 U.S. 237,
248 (1952) (dictum).
In this case, the Railroad’s declaratory judgment action seeks to resolve
whether the Landowners may rely upon Louisiana state property law to
establish a right, as enclosed estate owners, to construct and use private at-
grade crossings over the Railroad’s tracks. If the Landowners, the declaratory
judgment defendants, brought coercive actions to claim a right of passage over
the Railroad’s tracks, such actions would arise exclusively under state law.

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Although the Railroad also seeks a declaration that this state property law
constitutes a form of preempted state regulation, this claim arises merely as an
anticipatory federal defense to a state law cause of action, which is generally
insufficient to establish federal question jurisdiction.
Nonetheless, the Railroad argues that jurisdiction is established based on
Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983). In Shaw, the Supreme Court
explained:
It is beyond dispute that federal courts have jurisdiction over suits
to enjoin state officials from interfering with federal rights. See Ex
parte Young, 209 U.S. 123, 160–162 (1908). A plaintiff who seeks
injunctive relief from state regulation, on the ground that such
regulation is pre-empted by a federal statute which, by virtue of the
Supremacy Clause of the Constitution, must prevail, thus presents
a federal question which the federal courts have jurisdiction under
28 U.S.C. § 1331 to resolve.
Id. at 96 n.14. The Railroad argues that because it seeks injunctive relief from
state regulation on preemption grounds, Shaw applies and federal jurisdiction
is established.
Shaw, among the progeny of Ex parte Young, clearly establishes a federal
right of action against “state officials” to enjoin the enforcement of preempted
state regulations. This cause of action against state officials is an affirmative
federal claim that can form the basis for federal jurisdiction. See, e.g., Planned
Parenthood of Houston and Se. Tex. v. Sanchez, 403 F.3d 324, 331 (5th Cir. 2005)
(suit against Texas state officials to enjoin the enforcement of allegedly
preempted state abortion laws); Gillis v. Louisiana, 294 F.3d 755, 760 (5th Cir.
2002) (suit against Louisiana and Louisiana state officials to enjoin as
preempted Louisiana’s regulation of pilotage off the state’s coastline). However,
Shaw does not address whether a comparable right of action can be asserted
exclusively against private parties in the absence of any allegation of state
action.

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On this issue, Professor Wright explains:
On principle it should be held that the rule of these cases is confined
to actions to which state officials are parties. The best explanation
of Ex parte Young and its progeny is that the Supremacy Clause
creates an implied right of action for injunctive relief against state
officers who are threatening to violate the federal Constitution and
laws. . . . That implied right of action does not reach to a suit by one
private party against another and it ought to be held that there is
no federal jurisdiction of an action for a private party that federal
law has preempted a duty he would otherwise owe to another
private party.
13B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3566. In line with this understanding, the First
Circuit has stated: “Jurisdiction over actions for declarations of pre-emption can
logically only be asserted where a state official is the defendant.” Colonial Penn
Group, Inc. v. Colonial Deposit Co., 834 F.2d 229, 237 (1st Cir. 1987). Likewise,
when confronted with a declaratory judgment action raising preemption issues
and involving only private parties, the Second Circuit distinguished Shaw
because “[the plaintiffs] have not sued state officials to enjoin them from
enforcing an unconstitutional state law.” Albradco, Inc. v. Bevona, 982 F.2d 82,
87 (2d Cir. 1992).
We agree with these authorities that the principle articulated in
Shaw—that a plaintiff who seeks injunctive relief on preemption grounds
necessarily presents a federal question—does not apply in a suit exclusively
between private parties, in the absence of some showing of state action. Shaw
reemphasized that an affirmative federal cause of action exists against state
officials who interfere with federal rights, including where the state official seeks
to enforce federally preempted state regulations. Shaw did not, however,
establish a comparable right of action against private parties, nor did it
eviscerate that aspect of the well-pleaded complaint rule providing that

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anticipated or potential defenses, including defenses based on federal
preemption, do not establish a basis for federal question jurisdiction.
Because the Railroad sought relief exclusively against private parties and
because the Railroad’s preemption claim arises as an anticipated or potential
federal defense, the Railroad’s argument that federal jurisdiction is established
under Shaw fails.

B
The Railroad next argues that the ICCTA completely preempts the
Louisiana statutory scheme for enclosed estate owners, which has allegedly
authorized the Landowners’ construction and use of these private, at-grade
railroad crossings.
The complete preemption doctrine is an exception to the well-pleaded
complaint rule. McAteer v. Silverleaf Resorts, Inc., 514 F.3d 411, 416 (5th Cir.
2008) (citing Beneficial Nat’l Bank, 539 U.S. at 8). Under the complete
preemption doctrine, what otherwise appears as merely a state law claim is
converted to a claim “arising under” federal law for jurisdictional purposes
because “the federal statute ‘so forcibly and completely displace[s] state law that
the plaintiff’s cause of action is either wholly federal or nothing at all.’” Hoskins,
343 F.3d at 773 (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d
362, 366 (5th Cir. 1995)). The question in complete preemption analysis is
whether Congress intended the federal cause of action to be the exclusive cause
of action for the particular claims asserted under state law. See PCI Transp.,
418 F.3d at 544; Hoskins, 343 F.3d at 775–76. If Congress intended the federal
cause of action to be exclusive, the state law cause of action is completely
preempted, and federal jurisdiction exists.
The complete preemption doctrine must be distinguished from the concept
of ordinary preemption. See Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 272–73

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(2d Cir. 2005) (distinguishing “complete preemption” from “defensive
preemption” or “ordinary preemption”). “Complete preemption is a
‘jurisdictional doctrine,’ while ordinary preemption simply declares the primacy
of federal law, regardless of the forum or the claim.” Lontz v. Tharp, 413 F.3d
435, 440 (4th Cir. 2005); Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir.
2000) (“‘Complete preemption,’ which creates federal removal jurisdiction, differs
from more common ‘ordinary preemption’ (also known as ‘conflict preemption’),
which does not.”); see also Sullivan, 424 F.3d at 272 n.5 (suggesting that the
term “jurisdictional preemption” would reflect more accurately the doctrine’s
theoretical underpinnings). As a general matter, complete preemption is less
common and more extraordinary than defensive or ordinary preemption. See
Sullivan, 424 F.3d at 272–73 (“Many federal statutes—far more than support
complete preemption—will support a defendant’s argument that because federal
law preempts state law, the defendant cannot be held liable under state law.”).
We have held that the complete preemption doctrine applies to state
causes of action that “fall squarely” under 49 U.S.C. § 10501(b) of the ICCTA.
See PCI Transp., 418 F.3d at 540, 545 (concluding that the ICCTA provided the
exclusive cause of action for the plaintiff’s non-contractual relief that effectively
sought to regulate the operation of a short-line railroad’s switching yard and
therefore fell squarely under § 10501(b)). Section 10501(b) provides:
(b) The jurisdiction of the 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
(2) the construction, acquisition, operation, abandonment, or
discontinuance of spur, industrial, team, switching, or side
tracks, or facilities, even if the tracks are located, or intended
to be located, entirely in one State,

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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 “Board” refers to the Surface Transportation Board (“STB”), 49 U.S.C.
§ 10102(1), which is the body authorized by Congress to administer the ICCTA.
See Friberg v. Kansas City S. Ry. Co., 267 F.3d 439, 442 (5th Cir. 2001) (noting
that with the ICCTA Congress abolished the Interstate Commerce Commission
(“ICC”) and replaced it with the STB to perform many of the regulatory functions
previously performed by the ICC). “As the agency authorized by Congress to
administer the [ICCTA], the Transportation Board is uniquely qualified to
determine whether state law should be preempted by the [ICCTA].” Emerson
v. Kansas City S. Ry. Co., 503 F.3d 1126, 1130 (10th Cir. 2007) (alterations in
original) (quoting Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 642 (2d
Cir. 2005)).
Although PCI Transportation applied the complete preemption doctrine
to an asserted state remedy that fell “squarely” under § 10501(b) of the ICCTA,
that decision focused on whether the complete preemption doctrine applied, as
opposed to what extent it applied. We have never defined the precise contours
of complete preemption under § 10501(b) or stated how broadly the complete
preemption doctrine extends in the context of the ICCTA.
The STB has articulated a comprehensive test for determining the extent
to which a particular state action or remedy is preempted by § 10501(b).
However, the STB’s test applies to ordinary preemption analysis under
§ 10501(b); the test does not necessarily apply to complete preemption.
Nonetheless, as discussed below, the STB’s test clarifies the status of routine
crossing cases within the framework of the ICCTA and thus is instructive.

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The STB’s § 10501(b) preemption analysis distinguishes between two types
of preempted state actions or regulations. First, there are those state actions
that are “categorically preempted” by the ICCTA because such actions “would
directly conflict with exclusive federal regulation of railroads.” CSX
Transportation, Inc.—Petition for Declaratory Order, STB Finance Docket No.
34662, 2005 WL 1024490, at *2–*3 (S.T.B. May 3, 2005). Regulations falling
within this first category are “facially preempted” or “categorically preempted”
and come in two types:
The first is any form of state or local permitting or preclearance
that, by its nature, could be used to deny a railroad the ability to
conduct some part of its operations or to proceed with activities
that the Board has authorized. . . .
Second, there can be no state or local regulation of matters directly
regulated by the Board—such as the construction, operation, and
abandonment of rail lines (see 49 U.S.C. 10901–10907); railroad
mergers, line acquisitions, and other forms of consolidation (see 49
U.S.C. 11321–11328); and railroad rates and service (see 49 U.S.C.
10501(b), 10701–10747, 11101–11124).
Id. at *2 (citations and footnote omitted). State actions such as these constitute
“per se unreasonable interference with interstate commerce.” Id. at *3. As such,
the preemption analysis for state regulations in this first category is addressed
to “the act of regulation itself” and “not to the reasonableness of the particular
state or local action.” Id.
The second category of preempted state actions and regulations are those
that are preempted as applied. Section 10501(b) of the ICCTA may preempt
state regulations, actions, or remedies as applied, based on the degree of
interference the particular state action has on railroad operations. “For state or
local actions that are not facially preempted, the section 10501(b) preemption
analysis requires a factual assessment of whether that action would have the
effect of preventing or unreasonably interfering with railroad transportation.”

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Id. Citing our decision in Friberg, 267 F.3d at 439, the STB stated that “it is
well settled that states cannot take an action that would have the effect of
foreclosing or unduly restricting a railroad’s ability to conduct any part of its
operations or otherwise unreasonably burdening interstate commerce.” Id. at
*4.
The STB has clearly identified where routine crossing disputes, such as
the one at issue in this case, fall in this scheme of ICCTA preemption. Routine
crossing disputes are not typically preempted. Crossing disputes, despite the
fact that they touch the tracks in some literal sense, thus do not fall into the
category of “categorically preempted” or “facially preempted” state actions. The
STB has explained that “[t]hese crossing cases are typically resolved in state
courts.” Maumee & W. R.R. Corp. and RMW Ventures, LLC–Petition for
Declaratory Order, STB Finance Docket No. 34354, 2004 WL 395835, at *2
(S.T.B. March 2, 2004). “[R]outine, non-conflicting uses, such as non-exclusive
easements for at-grade road crossings, wire crossings, sewer crossings, etc., are
not preempted so long as they would not impede rail operations or pose undue
safety risks.” Id.; see also CSX Transp., Inc., 2005 WL 1024490, at *6 (approving
the proposition that “a state’s traditional authority over the safety of roads and
bridges at grade-separated rail/highway crossings pursuant to other statutory
schemes is not preempted by section 10501(b) so long as no unreasonable burden
is imposed on a railroad”); City of Lincoln v. Surface Transp. Bd., 414 F.3d 858,
863 (8th Cir. 2005) (STB adopting the position that “it is well established that
nonconflicting, nonexclusive easements across railroad property are not
preempted if they do not hinder rail operations or pose safety risks.”). Thus,
within the STB’s analytical framework, preemption claims in routine crossing
cases fall into the category of as-applied preemption challenges.

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The STB’s position with respect to these routine crossing cases is
consistent with the historical, pre-ICCTA rule governing these crossing disputes.
As the Supreme Court long-ago explained:
The care of grade crossings is peculiarly within the police power of
the states, and, if it is seriously contended that the cost of this grade
crossing is such as to interfere with or impair economical
management of the railroad, this should be made clear. It was
certainly not intended by the Transportation Act to take from the
states or to thrust upon the Interstate Commerce Commission
investigation into parochial matters like this, unless by reason of
their effect on economical management and service, their general
bearing is clear.
Lehigh Valley R.R. Co. v. Bd. of Pub. Util. Comm’rs, 278 U.S. 24, 35 (1928)
(citations omitted); see also Erie R.R. Co. v. Bd. of Pub. Util. Comm’rs, 254 U.S.
394, 409 (1921) (Holmes, J.) (“It is well settled that railroad corporations may be
required, at their own expense, not only to abolish existing grade crossings but
also to build and maintain suitable bridges or viaducts to carry highways, newly
laid out, over their tracks or to carry their tracks over such highways.” (internal
quotation marks omitted)).
The Railroad argues that the Louisiana statutory scheme for enclosed
estate owners, which allegedly authorizes the Landowners’ construction and use
of these private at-grade crossings, is completely preempted by the ICCTA
because the scheme prevents or unreasonably interferes with railroad
operations. Framing the Railroad’s argument within the structure of the STB’s
preemption analysis, the Railroad raises an as-applied preemption challenge to
the Louisiana state law. However, the Railroad does not argue why the STB’s
test for ordinary preemption under the ICCTA should also govern or help define
the scope of the distinct jurisdictional doctrine of complete preemption. More
specifically, the Railroad fails to explain whether and why the fact-intensive
inquiry for as-applied preemption challenges should be considered as part of a
complete preemption analysis under § 10501(b).

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We decline to define the precise contours of the complete preemption
doctrine under the ICCTA. Even assuming that the complete preemption
doctrine extends to as-applied preemption challenges, such as the one raised by
the Railroad in this case, the Railroad has failed to demonstrate that the
Louisiana scheme for enclosed estate owners unreasonably interferes with
railroad operations.
The fatal defect in the Railroad’s argument is that the Railroad fails to
establish that any unreasonable interference with railroad operations is caused
by operation or application of the Louisiana state law as opposed to the
independent actions of private parties. The Railroad bears the burden of
establishing that federal jurisdiction exists. The presumption against
preemption applies with full force to this generally applicable state property law,
even if applied to permit a private, at-grade railroad crossing. See In re Davis,
170 F.3d 475, 481 (5th Cir. 1999) (en banc) (“Deference to our federalism
counsels a presumption that areas of law traditionally reserved to the states,
like police powers or property law, are not to be disturbed absent the ‘clear and
manifest purpose of Congress.’”); Lehigh Valley R.R. Co., 278 U.S. at 35 (“The
care of grade crossings is peculiarly within the police power of the states.”).
Louisiana Civil Code Article 689 provides: “The owner of an estate that
has no access to a public road may claim a right of passage over neighboring
property to the nearest public road. He is bound to indemnify his neighbor for
the damage he may occasion.” This provision operates as follows:
[Article 689] is not self-executing. It does however confer on the
owner of an enclosed estate a legal servitude on the subordinate
property which entitles the owner to a forced passage for indemnity.
The enclosed landowner has the right to go into court and demand
that the passage be fixed, and the establishment of the location of
the right of way either through agreement or by judicial decision, is
a conventional servitude of passage. See LA. CIV. CODE ANN. art.
689; A. YIANNOPOULOS, 4 LOUISIANA CIVIL LAW TREATISE, Predial
Servitudes § 92 (3rd ed. 2004).

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Batton v. United States, No. Civ.A. 05-1219, 2006 WL 568295, at*3 (W.D. La.
Mar. 8, 2006) (Hayes, Mag. J.). Thus, by operation of law, the Landowners—as
enclosed estate owners—have the right under Article 689 to demand a right of
passage over the Railroad’s tracks. Yet while Article 689 permits an enclosed
landowner to demand a right of passage over neighboring lands, it does not
authorize the enclosed landowner to exercise that right however the owner
deems fit. Rather, to obtain the actual, fixed physical manifestation of this right
of passage, the enclosed landowner must either go to court and demand that the
passage be fixed or obtain an agreement from the owner of the subservient
estate.
The Railroad complains that this Louisiana statutory scheme
unreasonably interferes with railroad operations. However, the Railroad’s
primary support for this argument is misleading. To support this argument, the
Railroad focuses on the alleged substandard at-grade crossings that the
Landowners have installed and used, detailing how the number of these
crossings, combined with the substandard workmanship of the crossings,
increase the Railroad’s operating costs and impair the Railroad’s ability to
regularly inspect and maintain its tracks in accordance with federal safety
standards.
The Railroad does not allege that private crossings generally are
fundamentally inconsistent with the Railroad’s ability to operate. Rather, one
aspect of the Railroad’s complaint is that the Landowners have refused to obtain
permits from the Railroad to operate these private crossings. Among other
things, these permits would shift to the Landowners some of the Railroad’s
increased operating costs caused by the private railroad crossings. More
importantly, these permits presumably would allow the Landowners to continue
using the private crossings on terms and conditions approved by the Railroad.
Thus, the Railroad’s willingness and desire to enter into these permit

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agreements suggests that there are methods for constructing and using these
private crossings that minimize any interference with Railroad operations. We
do not read the Railroad’s complaint as suggesting that all crossings
unreasonably interfere with railroad operations. Rather, the Railroad’s primary
complaint is that the particular implementation of the Landowners’ private
crossings unreasonably interferes with railroad operations.
The problem with the Railroad’s argument based on the actual, fixed,
physical implementation of these crossings is that the Railroad fails to link the
interference caused by the implementation of these crossings to Article 689. The
Railroad’s complaint in reality is directed at the actions of private parties, not
the operation of Article 689.
The law in Louisiana is clear: Article 689 is not self-executing. While
Article 689 authorizes the Landowners to demand a right of passage over the
Railroad’s tracks, implementation of the right of passage must be fixed by either
judicial order or the agreement of the parties. The Railroad has not alleged that
any of the purported substandard private crossings at issue here were fixed by
any judicial order entered under the authority of Article 689. Indeed, the
Railroad’s complaint acknowledges and alleges that the Landowners do not have
a legal right to unilaterally install and use these private crossings. As such, the
Railroad has failed to show that any interference with railroad operations
allegedly caused by the construction and use of these substandard crossings can
be attributed to operation of Article 689 as opposed solely to the conduct of
private parties.3

3
We take no position on the legal status of these crossings, many of which have existed
well prior to the Railroad’s acquisition of the track. We simply note that the Railroad has not
satisfied its burden of establishing that Article 689 creates any conflicting scheme of state
regulation subject to the complete preemption doctrine. We discuss these issues only to reach
the conclusion that the federal courts lack subject matter jurisdiction over this crossing
dispute. Because there is no federal jurisdiction in this case, none of our comments should be
construed as passing on the substantive merits of this dispute.

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In addition, the Railroad has not established that Article 689, as it
actually operates, necessarily causes unreasonable interference with railroad
operations. Article 689 is a generally applicable state property law that does not
specifically apply to railroad crossings. This state law is capable of being applied
in a manner that does not unreasonably interfere with railroad operations.
First, Article 689 contains a cost-shifting mechanism; the law requires the
enclosed estate owner to indemnify the owner’s neighbor for any damages the
right of passage may occasion. One of the Railroad’s primary complaints about
these crossings is the damages caused by the crossings in the form of increased
operating costs. We doubt whether increased operating costs are alone sufficient
to establish “unreasonable” interference with railroad operations. See, e.g.,
Lehigh Valley R.R. Co., 278 U.S. at 33–34 (requiring a railroad to bear an
additional $100,000 expense in constructing an overheard crossing to preserve
the straightness of a road for safety reasons held near, but not beyond, the line
of reasonableness). Regardless, Article 689 can be interpreted to avoid the issue
of costs entirely by shifting some of these costs to the Landowners.
The Louisiana statutory scheme for enclosed estates does not specifically
apply to railroad crossings, and the scheme is silent on the proper placement and
construction of such crossings. A strong rationale supports granting a forced
right of passage for enclosed landowners: “As land becomes less available, more
necessary for public habitation, use, and support, it would run contrary to public
policy to encourage landlocking of such a valuable asset and forever removing
it from commerce and from public as well as private benefit.” Rockholt v. Keaty,
237 So.2d 663, 668 (La. 1970). The Louisiana statutory scheme for enclosed
estate owners is sufficiently broad and flexible to permit the Louisiana courts to
take account of this important public interest without unreasonably interfering
with railroad operations. See generally Bailey v. McNeely, 918 So.2d 1124, 1130
(La. Ct. App. 3d Cir. 2005) (“After considering the record in this matter,

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although the placement of the servitude by the trial court may not be the
shortest route to the nearest public road, or the most economical passage, the
trial court’s judgment takes into account all the particular circumstances of the
subject property, as well as existing servitudes, and provides the most practical,
feasible and aesthetic resolution possible.”); see also Erie R.R. Co., 254 U.S. at
410 (“Grade crossings call for a necessary adjustment of two conflicting
interests—that of the public using the streets and that of the railroads and the
public using them. Generically, the streets represent the more important
interest of the two.”). In light of these considerations, the Railroad has not
established and we cannot conclude that Article 689 and the statutory scheme
for enclosed estate owners necessarily would be applied in a manner that
unreasonably interferes with railroad operations.
For these reasons, the Railroad has not established that § 10501(b) of
the ICCTA completely preempts Article 689 and the Louisiana statutory
scheme for enclosed estate owners. The Railroad has thus failed to establish
jurisdiction on the basis of complete preemption under the ICCTA.4

C
The Railroad next argues that jurisdiction is proper because Article 689
is completely preempted by the Federal Railroad Safety Act (“FRSA”). The
FRSA was enacted “to promote safety in all areas of railroad operations and to

4
The parties do not address the fact that § 10501(b) of the ICCTA speaks of the
“exclusive” jurisdiction of the STB with respect to certain matters related to regulation of rail
transportation. The court in PCI Transportation likewise did not address this issue, although
on remand in that case the district court ultimately dismissed the parties’ claims as falling
within the exclusive jurisdiction of the STB. See PCI Transp., Inc. v. Forth Worth & W. R.R.
Co., Inc., No. 4:04-CV-211-Y (N.D. Tex. Sept. 26, 2006). Because the parties do not address
the issue and because we conclude that there is no federal jurisdiction, we do not address this
issue.

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 No. 06-31142

reduce railroad-related accidents, and to reduce deaths and injuries to
persons . . . .” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 661 (1993). The
FRSA grants the Secretary of Transportation broad power to promulgate
regulations “for all areas of railroad safety.” Id. at 662. The preemptive scope
of the FRSA is outlined in 49 U.S.C. § 201065 and explained more fully by the
Secretary’s regulation on preemption:
Under 49 U.S.C. 20106, issuance of these regulations preempts any
State law, regulation, or order covering the same subject matter,
except an additional or more stringent law, regulation, or order that
is necessary to eliminate or reduce an essentially local safety
hazard; is not incompatible with a law, regulation, or order of the
United States Government; and that does not impose an
unreasonable burden on interstate commerce.
49 C.F.R. § 213.2. In Lundeen v. Canadian Pac. Ry. Co., the Eighth Circuit held
that the plaintiffs’ state common law claim of negligent track inspection against
a railroad was completely preempted by the FRSA. 447 F.3d 606, 614–15 (8th
Cir. 2006). Whether a specific state statute or regulation is preempted by the
FRSA may require a fact-intensive inquiry to determine the nature, if any, of the
conflict between state and federal regulations. See, e.g., Mo. Pac. R.R. Co. v.

5
Section 20106(a) provides:

(2) A State may adopt or continue in force a law, regulation, or order
related to railroad safety or security until the Secretary of
Transportation (with respect to railroad safety matters), or the Secretary
of Homeland Security (with respect to railroad security matters),
prescribes a regulation or issues an order covering the subject matter of
the State requirement. A State may adopt or continue in force an
additional or more stringent law, regulation, or order related to railroad
safety or security when the law, regulation, or order—

(A) is necessary to eliminate or reduce an essentially local safety
or security hazard;

(B) is not incompatible with a law, regulation, or order of the
United States Government; and

(C) does not unreasonably burden interstate commerce.

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R.R. Comm’n of Tex., 833 F.2d 570, 575 (5th Cir. 1987) (remanding for further
factual development regarding the overlap between federal track regulations and
state regulations regarding walkway requirements); see also Mo. Pac. R.R. Co.
v. R.R. Comm’n of Tex., 948 F.2d 179 (5th Cir. 1991) (affirming district court’s
decision that state walkway requirement was preempted).
We do not decide whether the complete preemption doctrine could ever
apply in the context of the FRSA, because in this case it is clear that the
complete preemption doctrine does not apply. The Railroad’s FRSA complete
preemption claim fails for many of the same reasons as its ICCTA claim. First,
the Railroad has failed to allege any safety issue under the FRSA that arises
from the operation or application of Article 689 as opposed to the actions of
private parties. Article 689 is silent on how a right of passage over the
Railroad’s tracks should be implemented or how a crossing should be
constructed. To the extent that the Railroad’s argument for complete
preemption under the FRSA is somehow based on the increased costs incurred
by the Railroad to maintain their tracks in accordance with federal safety
standards, we note again that Article 689 contains a specific cost-shifting
mechanism that could be applied to alleviate these concerns. The Railroad bears
the burden of establishing the court’s jurisdiction, and we of course decline to
presume that the Louisiana state courts would apply Article 689 in a manner
that needlessly conflicts with federal safety standards for railroads.
In addition, the Railroad has not demonstrated that there are any federal
safety standards regulating the implementation of private, at-grade crossings.
The Federal Railroad Administration (“FRA”), the administrative body charged
with enforcing the FRSA, has acknowledged that private crossings are governed
by—if anything—state law, and not federal, law. See Safety of Private Highway-
Rail Grade Crossings; Notice of Safety Inquiry, 71 Fed. Reg. 42716 (Dep’t of
Transp. July 27, 2006).

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For these reasons, without deciding whether complete preemption under
the FRSA might apply in other circumstances, we conclude that the Railroad has
failed on the facts of this case to establish that the Louisiana statutory scheme
for enclosed estate owners is completely preempted under the FRSA.

D
Finally, the Railroad argues that federal question jurisdiction is
established because the Railroad’s claims implicate significant federal issues,
citing the doctrine first developed in Smith v. Kansas City Title & Trust Co., 255
U.S. 180 (1921). According to the Supreme Court’s most recent formulation of
this doctrine, “the question is, does a state-law claim necessarily raise a stated
federal issue, actually disputed and substantial, which a federal forum may
entertain without disturbing any congressionally approved balance of federal
and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue
Eng’g & Mfg., 545 U.S. 308, 314 (2005).
Here, the Railroad argues that they have raised a disputed and
substantial question of federal law arising from the need to control the
Landowners’ interference with its railroad right-of-way for providing interstate
transportation services; the Railroad also states that there is a strong federal
interest in maintaining railroad service throughout the country. However, the
Railroad does not identify which state law claim it has asserted that (a)
necessarily raises a stated federal issue that is (b) disputed and substantial and
that (c) does not upset the federal and state balance. In essence, the Railroad’s
broad argument on this point attempts to establish federal jurisdiction on the
basis of the general federal interest in interstate railroad transportation. In the
absence of a more specific argument that attempts to address the standard
outlined in Grable & Sons, we cannot conclude that the Railroad has raised a
significant federal issue sufficient to establish federal question jurisdiction.

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IV
We DISMISS that portion of the appeal challenging the district court’s
decision to remand the Rayborn action to state court.
With respect to the Railroad’s declaratory judgment action, because the
Railroad has failed to establish any basis for federal jurisdiction, we AFFIRM
the district court’s dismissal for want of jurisdiction.

24