Franks Investment Co. LLC v. Union Pacific Railroad

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

FILED
January 6, 2010

No. 08-30236 Charles R. Fulbruge III
Clerk

FRANKS INVESTMENT COMPANY LLC

Plaintiff - Appellant
v.

UNION PACIFIC RAILROAD CO.

Defendant - Appellee

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

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, BARKSDALE,
GARZA, BENAVIDES, STEWART, CLEMENT, PRADO, OWEN, ELROD,
SOUTHWICK, and HAYNES, Circuit Judges.1

Leslie H. Southwick, Circuit Judge.

The question before the en banc court is whether the preemption provision
of a federal statute preempts a state law possessory action filed by a landowner
to preserve a long-existing crossing over railroad tracks. We conclude that this
landowner’s state law action, removed to federal court based on diversity of
citizenship, is not preempted. Consequently, we REVERSE the district court
and REMAND for adjudication of the merits of the state law claims.

1
Judges WIENER and DENNIS did not participate in this decision.
 No. 08-30236

I. BACKGROUND
Franks Investment Company owns a large tract of land in Louisiana. It
leases portions of that land for farming. One boundary of the Franks land is
parallel to Louisiana Highway 1 for about two miles. The tracks of the Union
Pacific Railroad are laid on a 100-foot-wide strip of land it owns between the
Franks property and Highway 1. The Union Pacific operates freight service on
this line between Shreveport and Alexandria.
For decades, four private railroad crossings provided access to the Franks
property from Highway 1. Wooden planks were laid between the rails, while the
approaches consisted of dirt and gravel. In 2005, the Union Pacific posted
notices of intent to close two of the four crossings that accessed Franks’s
property. Franks and the railroad entered negotiations, but there was no
satisfactory resolution.
In December 2007, the Union Pacific closed and removed two of the
crossings. It then threatened to remove the other two. In January 2008, Franks
filed suit in state court under Louisiana Code of Civil Procedure Article 3655,
claiming that it possessed a real right to use the four crossings. Franks sought
an injunction to prevent the Union Pacific from closing the two remaining
crossings and to compel it to replace the two crossings it removed.
The Union Pacific removed the case to federal court, as there was diversity
of citizenship. Following a two-day bench trial, the district court ruled in favor
of the railroad. The court found that Franks’s state law action was preempted
by a federal statute that we will discuss. A unanimous panel of this court
affirmed, agreeing that Franks’s possessory action was expressly preempted.
Franks Inv. Co., LLC v. Union Pac. R.R. Co., 534 F.3d 443 (5th Cir. 2008).
Franks’s petition for rehearing en banc was granted, causing the panel opinion
to be withdrawn. Franks Inv. Co., LLC v. Union Pac. R.R. Co., 562 F.3d 710 (5th
Cir. 2009). We now address the preemption issues anew.

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II. DISCUSSION
The statutory provisions at the center of this dispute are in the Interstate
Commerce Commission Termination Act (“ICCTA”). Pub. L. 104-88, 109 Stat.
803. In one of its sections, the jurisdiction of the Surface Transportation Board
(“STB”) is defined and the preemptive effect of the statute is declared.
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,

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).
We will explore this language at length. First, we review some basics.
The preemptive effect of a federal statute is a question of law that we
review de novo. Friberg v. Kan. City Southern Ry. Co., 267 F.3d 439, 442 (5th
Cir. 2001).
In determining the existence and reach of preemption, Congress’s purpose
is “the ultimate touchstone” to use. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485
(1996) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)).
Congress can show its purpose in one of two ways. First, it may “indicate pre-
emptive intent through a statute’s express language.” Altria Group, Inc. v.
Good, 129 S. Ct. 538, 543 (2008). However, even when there is an express
preemption clause in a statute, “the question of the substance and scope of

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Congress’ displacement of state law still remains.” Id. Second, Congress may
impliedly preempt state law “if the scope of the statute indicates that Congress
intended federal law to occupy the legislative field, or if there is an actual
conflict between state and federal law.” Id.; see Friberg, 267 F.3d at 442.
There is also a presumption that the “historic police powers of the States
[are] not to be superseded by the Federal Act unless that was the clear and
manifest purpose of Congress.” Altria Group, 129 S. Ct. at 543 (quoting Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The presumption is relevant
even when there is an express pre-emption clause. That is because “when the
text of a pre-emption clause is susceptible of more than one plausible reading,
courts ordinarily ‘accept the reading that disfavors pre-emption.’” Id. (quoting
Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)). Thus, the
presumption operates both to prevent and to limit preemption.
This court has explained that the presumption against preemption is
applicable to “areas of law traditionally reserved to the states, like police powers
and property law. . . .” Davis v. Davis, 170 F.3d 475, 481 (5th Cir. 1999) (en
banc). More recently and topically, we discussed the presumption against
preemption in another railroad crossing case. New Orleans & Gulf Coast Ry. Co.
v. Barrois, 533 F.3d 321 (5th Cir. 2008). We found the no-preemption
presumption to apply “with full force to this generally applicable state property
law, even if applied to permit a private, at-grade railroad crossing.” Id. at 334.
However, the specific preemption issue in Barrois was different. We
considered whether there was “complete preemption” under the ICCTA. Under
that doctrine, a state law claim will be transformed into one that arises under
federal law when a federal statute commands the entire legal arena and in effect
displaces any competing state law. Id at 331. Such preemption actually creates
federal jurisdiction by its domination of the arena. Id. We found no complete

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preemption. Id. at 338. Today we address the more common, indeed, the
ordinary category of preemption.
We conclude, though, that the presumption need not be invoked in this
case. Even without analyzing how that presumption might limit the preemptive
effect of this enactment, we decide that preemption does not apply.
Today’s dispute was created by the physical intersection of railroad
operations and an owner’s access to its land. Consequently, the law to be
applied, absent preemption, is that which Louisiana applies to real property
disputes.
A. Express Preemption
Because the relevant statute contains a preemption clause, statutory
construction analysis begins with “the plain wording of the clause, which
necessarily contains the best evidence of Congress’ pre-emptive intent.” CSX
Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993).
The parties disagree over the meaning of the text. The entire relevant
section of the statute is only two, though lengthy, sentences. A structural issue
is the relationship between the two sentences. The Union Pacific argues, first,
that what controls is the section’s first sentence, namely, that jurisdiction of the
STB over “transportation by rail carriers” is exclusive. Next, the power of the
word “exclusive” leads to federal preemption of all state court proceedings
affecting rail transportation. In the railroad’s view, because the present dispute
concerns either transportation by rail carriers under Section 10501(b)(1) or rail
facilities under Section 10501(b)(2), the STB is the only venue.
Conversely, Franks insists that we should focus on the second sentence of
Section 10501(b)(2), as it contains the preemption clause. That sentence states
that “the remedies provided under this part with respect to regulation of rail
transportation are exclusive,” a clause that contains several words important
to our interpretation. The sentence closes by saying that the provided remedies

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“preempt the remedies provided under Federal or State law.” To Franks, use of
the word “regulation” indicates that only laws that specifically regulate railroad
transportation are preempted, while generally applicable laws that merely
impact railroad transportation are not preempted.
As we seek to understand these words, we need to understand their
context. The Act’s title reveals that at least one of its effects was to terminate
the Interstate Commerce Commission. The jurisdiction of the STB over what
used to be regulated by the ICC needed to be defined. We focus today on Section
10501(b). The entirety of Section 10501 – too long to quote unless necessary, and
it is not – provides that the STB has jurisdiction over transportation by rail
carriers, which includes transportation only by rail, and also that which occurs
by rail and water in some situations. 49 U.S.C. § 10501(a)(1). The next
subsection provides that the transportation subject to STB’s jurisdiction has
certain geographical requirements, such as occurring between a place in one
state and a place in a territory of the United States, or between two different
places in the same state so long as the transportation is part of an interstate rail
network. Id. §§ 10501(a)(2) (A) & (B). It is following these statements of
jurisdictional conditions that Congress dropped in the language of Section
10501(b), that the jurisdiction is exclusive and the remedies are preemptive.
Other limitations then follow, such as the STB’s authority in quite narrow
situations over local rail transportation. Id. § 10501(c)(3)(B).
The remedies available at the STB dealing with “rates, classifications,
rules, . . . practices, routes, services, and facilities of such carriers,” are exclusive.
Some of those remedies are set out in Section 10701, which establishes
standards for rates. Other provisions of the ICCTA deal with general
requirements for rail operations. Obviously, many of the subjects listed in the
exclusive jurisdiction section are significant ones dealing with the basics of the
functions of railroads, e.g., rates and routes.

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We view the Union Pacific’s arguments using the light given by this
context. For the first time before the en banc court, it argues that tracks are
railroad facilities under Section 10501(b)(2). Today is too late; this argument is
waived. See United States v. Brace, 145 F.3d 247, 250 (5th Cir. 1998) (en banc).
Next, it is argued that railroad crossings fit within the definition of
“transportation” under Section 10501(b)(1). The district court found the relevant
part of the ICCTA’s definition of “transportation” to be this: “a locomotive, car,
vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility,
instrumentality, or equipment of any kind related to the movement of
passengers or property, or both, by rail, regardless of ownership or an agreement
concerning use.” 49 U.S.C. § 10102(9)(A). After quoting this definition, the
district court cited an opinion from the Northern District of New York, that had
found that any physical improvement made to railroad tracks necessarily
impacts the movement of passengers or property. See Island Park, LLC v. CSX
Transp., Inc., No. 1:06-CV-310, 2007 WL 1851784 (N.D.N.Y. June 26, 2007),
rev’d, 559 F.3d 96 (2d Cir. 2009). As a result, all railroad crossings disputes fall
within the definition of transportation.
We have the luxury not provided to the district court of knowing that the
precedent on which it relied, and particularly the expansive definition of
“transportation,” was rejected on appeal. See Island Park, 559 F.3d at 102. The
Second Circuit held, in reversing the district court’s opinion that was relied on
here, that a state court action involving whether a private railroad crossing used
to transport farm equipment should be closed was not preempted. Id. at 99, 103.
The court noted:
In our view, the term rail “transportation” does not encompass
the closure of this private rail crossing. Rail transportation does
include “property . . . related to the movement of passengers or
property . . . by rail,” 49 U.S.C. § 10102(9)(A), and a rail crossing
does constitute “an improvement to railroad tracks that allows

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vehicles, equipment, and persons to traverse the tracks.” 2007 WL
1851784, at *12. But we cannot conclude that all state action
related to a railroad crossing is pre-empted. The appropriate
questions are: what does the state seek to regulate and does the
proposed regulation burden rail transportation?

Id. at 103 (footnote omitted). The court went on to conclude that closing a
crossing does not relate to movement of passengers or property.
The Union Pacific distinguishes Island Park on the basis that it involved
a state administrative order requiring a railroad to close a crossing for safety
reasons. Franks is a private landowner using a state law to keep a railroad
crossing open. This distinction is unimportant. Both cases involve state laws
that affect railroad crossings. It does not matter whether the impetus behind an
attempt to close a crossing comes from the state or the railroad owner. In either
case, preventing the railroad owner from making its own decisions regarding
railroad crossings creates the same amount of potential interference with
railroad operational decisions.
We conclude that the relevant part of Section 10501(b) is its second
sentence. The first, and longer one, is defining the authority of the STB in
dealing with the fundamental aspects of railroad regulation, and barring others
from interfering with those decisions by making the jurisdiction exclusive. We
will return to that part of the statute later, but not until after we review the
source of the preemption – the second sentence of the section.
We break the second sentence down into its component parts. What is
declared to be exclusive are “the remedies provided under this part,” which we
have to some extent already discussed. There are proceedings before the STB
that can be held on such matters as rates, rules, practices, and routes.
Complaints about such matters can be brought to the STB. Remedies through
administrative action are the exclusive ones.

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Those remedies are exclusive “with respect to regulation,” that last word
being the one fought over in this case and in the precedents. The Eleventh
Circuit has held that “Congress narrowly tailored the ICCTA pre-emption
provision to displace only ‘regulation,’ i.e., those state laws that may reasonably
be said to have the effect of ‘manag[ing]’ or ‘govern[ing]’ rail transportation, . . .
while permitting the continued application of laws having a more remote or
incidental effect on rail transportation.” Fla. E. Coast Ry. Co. v. City of W. Palm
Beach, 266 F.3d 1324, 1331 (11th Cir. 2001).2 We find this interpretation of the
ICCTA to be persuasive. The text of Section 10501(b), with its emphasis on the
word regulation, establishes that only laws that have the effect of managing or
governing rail transportation will be expressly preempted.
Finally, the remedies that are preempted are those “provided under
Federal or State law,” but those remedies receive their meaning from the earlier
part of the sentence. To the extent remedies are provided under laws that have
the effect of regulating rail transportation, they are preempted.
This analysis is consistent with the STB’s explanation of preemption under
the ICCTA. Our Barrois opinion reviewed the STB’s interpretation, and found
that it distinguished between two types of state actions:
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.” 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

2
A number of other circuits have explicitly adopted this position as well. See, e.g., PCS
Phosphate Co. v. Norfolk Southern Corp., 559 F.3d 212, 218 (4th Cir. 2009); Adrian &
Blissfield R.R. Co. v. Vill. of Blissfield, 550 F.3d 533, 539 (6th Cir. 2008); N.Y. Susquehanna
& Western Ry. Corp. v. Jackson, 500 F.3d 238, 252, 254 (3d Cir. 2007) (noting also that “[i]n
particular, we agree that a state law that affects rail carriage survives preemption if it does
not discriminate against rail carriage and does not unreasonably burden rail carriage”).

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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; railroad mergers,
line acquisitions, and other forms of consolidation; and
railroad rates and service.
Barrois, 533 F. 3d at 332 (citations omitted). Such regulation would by its very
nature be “unreasonable interference with interstate commerce” and must be
preempted. Id. We went on to discuss a second category of state actions that the
STB found to be “preempted as applied.” Id. We will discuss those in a later
section of the opinion.
Resolving the typical disputes regarding rail crossings is not in the nature
of regulation governed by the exclusive jurisdiction of the STB. The relevant
question under the ICCTA is whether Franks’s railroad crossing dispute invokes
laws that have the effect of managing or governing, and not merely incidentally
affecting, rail transportation. It does not. Franks brought a possessory action,
claiming that it had a servitude of passage similar to an easement over the
crossings. This suit is governed by Louisiana property laws and rules of civil
procedure that have nothing to do with railroad crossings. Railroads are only
affected when the servitude happens to cross a railroad. These property laws are
not meant to regulate railroad transportation, though at times they may have
an incidental effect on railroad transportation.
The cases on which the district court relied can be viewed as consistent
with this interpretation of preemption. The case that may have been most
heavily relied on by the district court was from this circuit and involved a state
law tort suit against a railroad company for allowing trains to block railroad
crossings. Friberg, 267 F.3d at 440-41. It is clear that a tort suit that attempts
to mandate when trains can use tracks and stop on them is attempting to

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manage or govern rail transportation in a direct way, unlike a state law property
action regarding railroad crossings. As we noted in Friberg, “[r]egulating the
time a train can occupy a rail crossing impacts, in such areas as train speed,
length and scheduling, the way a railroad operates its trains, with concomitant
economic ramifications . . . .” Id. at 443. These same concerns are not present
in Franks’s state law property action.
The district court also cited a Ninth Circuit case involving state and local
environmental laws that were impeding the ability of a railroad company to buy,
improve, and reopen a railroad track. City of Auburn v. United States, 154 F.3d
1025 (9th Cir. 1998). That case also involved an attempt to manage or govern
rail transportation, not an incidental effect on rail transportation.
Additionally, the district court relied on an Eighth Circuit opinion
involving a city’s condemning twenty feet of a one-hundred-foot-wide right-of-
way over a length of several city blocks. City of Lincoln v. Surface Transp. Bd.,
414 F.3d 858, 858-59 (8th Cir. 2005). The City desired the long stretch of land
in order to improve a storm sewer and for a recreational trail. The only issue on
appeal, though, concerned the taking of the property for a trail. Id. at 863 (the
STB did not rule on the use of property as a storm sewer).
After the railroad revealed that it would argue federal preemption if the
City sought to condemn the property, the City filed for a declaratory judgment
from the STB. The STB ruled, and the Eighth Circuit affirmed, that the City’s
eminent domain action would “unduly interfere with railroad operations and
interstate commerce.” Id. at 860. To be clear, the dispute in City of Lincoln was
whether “losing a 20 foot strip from the right of way along four blocks of the line
would leave insufficient room for storage, loading, and unloading, as well as
access to the track for maintenance and derailment response.” Id. at 861.
The Lincoln opinion is quite relevant. It sustained the STB’s application
of an as-applied test, as can be seen in this section of the STB’s decision:

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Based on our review of the record in this proceeding, we find
that [the City of] Lincoln has not adequately refuted [the railroad’s]
contentions that it uses all of its right-of-way, including the
northernmost 20 feet, for rail transportation purposes, and that the
narrowing of the right-of-way to construct a trail would hinder or
halt those legitimate transportation operations and create safety
hazards. The burden is on Lincoln to justify its extraordinary
request to allow a taking of actively used railroad property. We
conclude, based on the record, that Lincoln has not met that burden.
Lincoln has not proffered convincing evidence that [the railroad] can
satisfy its present and future rail transportation needs using less
than the full width of its right-of-way, or that the proposed trail can
safely be placed so near [an] active rail line. Because Lincoln has not
made such a showing, we cannot declare, as Lincoln requests, that
its proposed taking will not unduly interfere with interstate
commerce.3

After the Eighth Circuit’s affirmance, the City continued its plan to
condemn the property for a storm sewer, though not as a surface trail. This led
to a second declaratory judgment action at the STB and a different outcome.
Courts have held that Federal preemption can shield railroad
property from state eminent domain law where the effect of the
eminent domain law would have been to prevent or unreasonably
interfere with railroad operations. But neither the court cases, nor
Board precedent, suggest a blanket rule that any condemnation
action against railroad property is impermissible. Rather, routine,
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.
Courts can, and regularly do (sometimes with input from the
Board through referral) make determinations as to whether
proposed eminent domain actions such as this would interfere with
railroad operations. The uses that [the railroad] has raised concerns
about here are common and of the type that the courts are
well-suited to address. While the Board enjoys broad discretion to
institute a declaratory order proceeding to eliminate a controversy

3
City of Lincoln – Petition for Declaratory Order, STB Finance Docket No. 34425, 2004
WL 1802302 (S.T.B. August 11, 2004) (citations omitted).

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or remove uncertainty, the particular facts of this case do not
suggest that further Board involvement is needed here.4

Why the Lincoln storm sewer project was less disruptive than the
recreational trail was not explained. Likely the surface use would only be during
construction; the storm sewer would be underground; the railroad eventually
would reclaim use of its entire surface right of way.
The set of City of Lincoln rulings are informative because they highlight
relevant distinctions. Substantial interference with railroad operations will be
preempted; routine crossing disputes will not. Barrois, 533 F.3d at 332-33.
For a state court action to be expressly preempted under the ICCTA, it
must seek to regulate the operations of rail transportation. Franks’s possessory
action invokes only state property laws and is not expressly preempted.
B. Implied Preemption
Our next question is which test should be used to determine whether
Franks’s action is impliedly preempted. Franks argues that we should adopt the
test used by the STB for such a determination.
The STB’s amicus brief to the en banc court explained the two-part test it
applies to preemption questions. We have already discussed the STB’s view
about the kinds of state regulation that are expressly preempted. According to
its brief, other state law actions “may be preempted as applied—that is, only if
they would have the effect of unreasonably burdening or interfering with rail
transportation, which involves a fact-bound case-specific determination.”
We discover articulations of such a test in STB decisions:
For state or local actions that are not facially preempted, the section
10501(b) preemption analysis requires a factual assessment of

4
Lincoln Lumber Co.—Petition for Declaratory Order—Condemnation of a Railroad
Right-of-Way for a Storm Sewer, STB Finance No. 34915, 2007 WL 2299735, *2-3 (STB Aug.
10, 2007) (citations omitted).

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whether that action would have the effect of preventing or
unreasonably interfering with railroad transportation.5
In Barrois, we expressed interest in but did not need to endorse or reject
the STB’s as-applied analysis for railroad crossing disputes. 533 F.3d at 333. We
observed that the usual crossing disputes were not “categorically preempted” or
“facially preempted” under the STB test but were to be resolved in state court.
Id. Instead, “within the STB’s analytical framework, preemption claims in
routine crossing cases fall into the category of as-applied preemption
challenges.” Id. We today go further in our review of the STB’s test.
Franks and the STB argue that we should give deference to the STB’s
interpretation of the preemptive effect of the ICCTA and therefore apply the
STB’s preemption analysis. We acknowledged in Barrois that the STB was “the
agency authorized by Congress to administer” the ICCTA, making it “uniquely
qualified to determine whether state law should be preempted by the” ICCTA.
533 F.3d at 331 (internal quotation marks and citations omitted). However, the
Supreme Court has recently reminded us that the reach of preemption is
unlikely to be a matter within the expertise of an agency:
While agencies have no special authority to pronounce on
pre-emption absent delegation by Congress, they do have a unique
understanding of the statutes they administer and an attendant
ability to make informed determinations about how state
requirements may pose an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress. The
weight we accord the agency’s explanation of state law’s impact on
the federal scheme depends on its thoroughness, consistency, and
persuasiveness.

Wyeth v. Levine, 129 S. Ct. 1187, 1201 (2009) (internal quotation marks and
citations omitted).

5
CSX Transportation, Inc.-Petition for Declaratory Order, STB Finance Docket No.
34662, 2005 WL 1024490, at *2-*3 (S.T.B. May 3, 2005).

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Therefore, the STB’s decision regarding the preemptive effect of the
ICCTA and the test it uses to determine preemption are not binding on us. Still,
we are free to adopt the STB’s preemption test to the extent that we find it to be
reasonable and a persuasive interpretation of the relevant considerations. The
STB’s test places in ICCTA specifics the general concerns of conflict preemption,
those concerns being whether compliance with both state and federal law is
impossible. Friberg, 267 F.3d at 442. We adopt the STB’s as-applied preemption
analysis as appropriate for implied preemption under the ICCTA.6
Under this fact-based test, state law actions can be preempted as applied
if they have the effect of unreasonably burdening or interfering with rail
transportation. The district court did not reach the issue of implied preemption
because it found Franks’s state law claims to be expressly preempted.
Franks makes several arguments regarding why its claim should not be
impliedly preempted. Franks’s primary argument is that the facts as proven in
the district court do not show that these private railroad crossings unreasonably
burden or interfere with rail transportation. The Union Pacific argues that the
district court made specific findings that private railroad crossings like the ones
at issue in this case affect safety, drainage, and maintenance issues and that
these factual findings cannot be ignored unless they are clearly erroneous. The
Union Pacific maintains that those findings support a conclusion that Franks’s
private crossings unreasonably burden and interfere with railroad operations.
In this case, the district court conducted a two-day bench trial before
finding that Franks’s state law claims were expressly preempted. There was

6
Other circuits have utilized in their ICCTA implied preemption analysis the STB’s
fact-specific approach of determining whether a law or action has the effect of unreasonably
interfering with the railroad. See Island Park, 559 F.3d at 103-06 (conducting factual inquiry
specific to the crossing at issue for preemption analysis, though the court never explicitly
states that it is using the STB’s as-applied test); PCS Phosphate Co., 559 F.3d at 220-22;
Adrien & Blissfield R.R. Co., 550 F.3d at 540-42 (adopting the STB’s two-part test in its
entirety); Jackson, 500 F.3d at 253-54; Emerson, 503 F.3d at 1133.

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argument and evidence presented regarding how private crossings affect
railroad operations. The Union Pacific noted that the crossings at issue were
made of wooden planks with approaches made out of dirt and gravel. The tracks
were said to be located in a low-lying area prone to flooding, and the land under
the tracks was often wet due to its low elevation and the high water table.
Through testimony from some of its employees, the railroad argued that
the presence of private crossings can increase the risk of derailment and made
track maintenance much more expensive and time consuming. The Union
Pacific maintained that the crossings trap water under the track, which
degrades the ballast and the crossties. This leads to increased track instability
and can cause trains to have to move at a slower speed over affected portions of
the track. Additionally, the crossings intersect a portion of the track that can be
used as a staging area where trains are held to regulate traffic flow in and out
of the nearby terminal.
Franks disputed each of these points. In questioning the Union Pacific’s
employees, Franks established that there had never been derailments in the
area. Further, there was no evidence that trains had needed to slow down
during the seventy years that the crossings had been present. Franks also
maintained that regardless of whether trains staged there, it just wanted to
have access to the crossings when trains were not present. There was also no
evidence of the specific crossings at issue causing safety issues.
Franks now argues that all of the evidence relating to railroad crossings
introduced at the trial was general and not specific to the four railroad crossings
at issue in this case. Therefore, Franks argues that the Union Pacific has not
shown that the four crossings at issue unreasonably burden or interfere with
railroad operations. The Union Pacific argues that it has shown that private
crossings of the type at issue here do burden railroad transportation and that
the district court’s findings support its position.

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The source for the Union Pacific’s argument appears to be the district
judge’s statement during his ruling from the bench that a “crossing is a physical
addition to the tracks that allows vehicles to cross the tracks; and that,
according to trial testimony, affects safety, drainage, and maintenance issues.”
We do not see this statement as a fact finding based on the specifics of the four
crossings at issue in this case. While the statement includes the language
“according to trial testimony,” the finding relates to all railroad crossings, not
just private ones or the ones at issue in this case.
We conclude that the district court decided only that all railroad crossings
affect rail transportation. Certainly at one level that is true. We have held,
though, that more is required before preemption applies. This same reasoning
undermines the Union Pacific’s argument that general testimony regarding
railroad crossings satisfies the burden of proving preemption under the as-
applied test. The Union Pacific presented testimony that private crossings like
the ones at issue here can affect drainage, increase track maintenance costs, and
cause trains to move at slower speeds. However, the railroad did not tie any of
these specific problems to these four crossings. Though the Union Pacific
provided two district court opinions that found preemption based on potential
interference with rail transportation, both of those cases involved actions that
would have the effect of regulating when a railroad or its facilities could
operate.7 These would be instances to apply express preemption and not as-
applied preemption under the STB’s test. By definition, an as-applied challenge
would need to address specific crossings. Otherwise, a finding of as-applied
preemption in this case would be nothing more than a finding that private

7
See Fayard v. Northeastern Vehicle Servs., LLC, 490 F. Supp. 2d 134, 141-42 (D.
Mass. 2007), rev’d on other grounds, 533 F.3d 42 (1st Cir. 2008); Rushing v. Kan. City Southern
Ry. Co., 194 F. Supp. 2d 493, 499 (S.D. Miss. 2001).

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crossing disputes are always preempted, at least in low-lying areas. We have
rejected that view of ICCTA preemption.
There is no evidence in the record to permit a finding that the four
crossings created any unusual interference with the railroad. These were typical
crossings and a typical dispute. It is not one that is federally preempted.
III. CONCLUSION
Section 10501(b) of the ICCTA does not expressly preempt Franks’s state
law action regarding use of its private railroad crossings. No evidence in this
record leads to a finding of implied preemption.
We REVERSE the district court’s judgment and REMAND for proceedings
on the merits of Franks’s state law claims.

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RHESA HAWKINS BARKSDALE, Circuit Judge, joined by Judges JOLLY and
STEWART, dissenting:
Regarding express preemption, while the result reached by the well-
written majority opinion may reflect what the ICCTA should say, the majority
fails to enforce what the ICCTA does say. The ICCTA expressly grants the
Surface Transportation Board (STB) exclusive jurisdiction over “transportation
by rail carriers”; and, such “transportation” includes rail crossings.
Understandably, this statutorily-mandated result may be inconvenient, or
burden the STB, or even be an undesirable policy choice. That, of course, does
not authorize our altering the statute’s vesting exclusive jurisdiction in the STB.
Accordingly, I must respectfully dissent.
Primarily at issue is whether Congress, through the ICCTA, expressly
preempted laws such as Louisiana Code of Civil Procedure Article 3655. This
analysis, of course, focuses on the language of the preemption clause. CSX
Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). Regarding the STB’s
exclusive jurisdiction and concomitant preemption, the ICCTA provides:
The jurisdiction of the [Surface Transportation] Board
over—

(1) transportation by rail carriers, and the remedies
provided in this part with respect to rates, classifications,
rules (including car service, interchange, and other
operating rules), practices, routes, services, and facilities of
such carriers; and

(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,

is exclusive. Except as otherwise provided in this part, the
remedies provided under this part with respect to

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regulation of rail transportation are exclusive and preempt
the remedies provided under Federal or State law.

49 U.S.C. § 10501(b) (emphasis added).
Pursuant to this section, the STB has “exclusive” jurisdiction over
“transportation by rail carriers”, which, as discussed infra, includes the rail
crossings at issue. This is one of the “remedies” provided by this section for the
“regulation of rail transportation”, addressed in the above preemption provision.
Pursuant to the above section, that remedy is “exclusive and prempt[s] the
remedies provided under Federal or State law”, including the Louisiana
possessory action at issue.
This is the plain meaning of the section. Our court applies the plain
meaning of a statute unless doing so would lead to an absurd result. E.g.,
Tesfamichael v. Gonzales, 411 F.3d 169, 173 (5th Cir. 2005). Vesting exclusive
jurisdiction in the STB over railroad crossings does not lead to such a result.
Obviously, for matters of this type, resolution should initially be through the
STB, not the courts. Judicial review is available. 28 U.S.C. § 2321 (judicial
review of STB orders). Moreover, as discussed infra, other sources, including the
STB’s interpretation of this section, should not be allowed to alter this plain
meaning.
The majority takes an approach at odds with this plain meaning. Under
the majority’s analysis, the questions are: does a rail crossing constitute
“transportation by rail carriers”; and, does a state judicial remedy that affects
operation of a crossing constitute “regulation of rail transportation”? (Even
under this approach, there should be express preemption.)
In the light of the ICCTA’s broad definition of “transportation”, the
district court concluded correctly that a railroad crossing constitutes
“transportation by rail carriers”. The ICCTA defines “transportation” to
include, inter alia, “a locomotive, car, vehicle, . . . property, facility,

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instrumentality, or equipment of any kind related to the movement of passengers
or property, or both, by rail, regardless of ownership or an agreement concerning
use”. 49 U.S.C. § 10102(9)(A) (emphasis added). That a rail crossing falls within
this definition is inescapable.
The majority rejects this obvious conclusion but does not explain how a
railroad crossing is not “equipment of any kind related to the movement of
passengers or property, or both, by rail”, other than by citation to Island Park,
LLC v. CSX Transp., Inc., 559 F.3d 96 (2d Cir. 2009). See Maj. Op. at 7–8. Yet
the Second Circuit admitted (in the very quotation relied upon by the majority):
“Rail transportation does include ‘property . . . related to the movement of
passengers or property . . . by rail,’ 49 U.S.C. § 10102(9)(A), and a rail crossing
does constitute an improvement to railroad tracks that allows vehicles,
equipment, and persons to traverse the tracks”. 559 F.3d at 103 (internal
quotation omitted); Maj. Op. at 7-8.
Although the Second Circuit implicitly recognized that, under the
statute’s plain language, a rail crossing does constitute “transportation by rail
carriers”, it nonetheless held “the term rail ‘transportation’ does not encompass
. . . this private rail crossing”. Id. at 103. The Second Circuit reached this
conclusion by conflating the question raised by the first sentence of 49 U.S.C.
§ 10501(b) (what is transportation) with that raised by its second sentence (what
is regulation of rail transportation), but then added a factor not found in the
section: “what does the state seek to regulate and does the proposed regulation
burden rail transportation”? Id.
The majority follows suit and, while keeping the two inquiries separate,
asks whether the state law at issue substantially interferes with railroad
operations. Maj. Op. at 13. Some might posit that, from a policy perspective,
this is desirable. This “substantial interference” approach, however, has no
basis in the language of the ICCTA.

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Our court’s binding precedent in Friberg v. Kansas City Southern Railway
Co., 267 F.3d 439 (5th Cir. 2001), is instructive. Friberg addressed whether the
ICCTA expressly preempted the Texas Anti-Blocking Statute, Tex. Transp.
Code. Ann. § 741.007(a). That statute limited, inter alia, the length of time a
train could occupy a railroad crossing. Friberg noted: “Regulating the time a
train can occupy a rail crossing impacts, in such areas as train speed, length and
scheduling, the way a railroad operates its trains . . . .” Id. at 443. Accordingly,
our court held the ICCTA expressly preempted Texas’ attempt to regulate a
railroad’s use of railroad crossings. Id. at 444.
The majority attempts to distinguish Friberg by stating: “These same
concerns are not present in Franks’s state law property action”. Maj. Op. at 11.
No further explanation is given, however. On the other hand, the district court
found such concerns present when it found regulation of the ownership and use
of railroad crossings affects safety, drainage, and maintenance, which
necessarily affect “rail transportation”.
In the absence of preemption, a remedy under Louisiana Code of Civil
Procedure Article 3655 could both compel the reinstallation of the destroyed
crossings and enjoin the closing of others. In short, this is “regulation of rail
transportation”, over which the STB has exclusive jurisdiction.
As stated, to circumvent this conclusion, the majority holds the ICCTA
preempts state regulation of crossings only if such regulation constitutes a
“[s]ubstantial interference with railroad operations”. Maj. Op. at 13. Again,
this approach cannot be justified under the ICCTA’s plain language; nor should
our court look past that language to other sources, including the STB’s flawed
analysis.
Finally, because the ICCTA expressly preempts Franks’ state-law action,
I do not reach implied preemption vel non, except to agree with the majority, of
course, that the district court’s findings about how crossings affect “rail

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transportation” related to all railroad crossings, not just to those at issue in this
action.
I respectfully dissent.

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