United Transportation Union v. Foster

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_______________

No. 98-31304
_______________

UNITED TRANSPORTATION UNION;
BROTHERHOOD OF LOCOMOTIVE ENGINEERS,

Plaintiffs - Appellees,

ASSOCIATION OF AMERICAN RAILROADS,

Intervenor - Plaintiff - Appellee,

VERSUS

MICHAEL FOSTER, as Governor of the State of Louisiana;
RICHARD IEYOUB, as Attorney General of the State of
Louisiana and as representatives of all other
similarly situated,

Defendants - Appellants.

_________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
March 17, 2000

Before DAVIS and JONES, and MAGILL,* Circuit Judges.

MAGILL, Circuit Judge:

This appeal raises the issue of whether federal law preempts

three Louisiana railroad transportation laws. The district court

answered this question in the affirmative and granted summary

judgment in favor of the appellees, United Transportation Union

(UTU)1, the Brotherhood of Locomotive Engineers (BLE)2, and the

*
Circuit Judge of the Eighth Circuit, sitting by designation.

1
UTU is the duly elected collective bargaining representative
for the crafts of employees known as trainmen, engineers,
(continued...)
American Association of Railroads (AAR)3. Louisiana's Governor and

Attorney General (Appellants) appeal the district court's ruling.

For reasons to be discussed, we affirm in part and remand to the

district court for further proceedings consistent with this

opinion.

I. Background

On May 6, 1998, Louisiana's Governor signed the following

three railroad transportation bills into law: 1) Senate Bill No.

26, enacted as Louisiana Revised Statute § 32:661.2 (Act 81), which

authorizes Louisiana law enforcement officers to administer post-

collision toxicological testing of railroad crews involved in

collisions at railroad crossings;4 2) Senate Bill No. 30, enacted

(...continued)
conductors, hostlers, switchmen, and yardmen.
2
BLE is the duly elected collective bargaining representative
for the craft of employees known as locomotive engineers.
3
AAR is an incorporated non-profit trade association whose
membership includes freight and passenger railroads. AAR claims
that its members operate 77% of the line-haul mileage, employ 91%
of the workers, and account for 93% of the freight revenues of all
railroads in the United States.
4
Act 81 provides:

A.(1) Any person who operates a locomotive engine upon
the railroad tracks of this state shall be deemed to have
given consent, subject to the provisions of R.S. 32:662,
to a chemical test or tests of his blood, breath, urine,
or other bodily substance for the purpose of determining
the alcoholic content of his blood and the presence of
any abused or illegal controlled dangerous substance as
set forth in R.S. 40:964 in his blood if he is involved
in a collision at a railroad crossing at any roadway of
this state alleged to have occurred when he was driving
or in actual physical control of the locomotive engine
while believed to be under the influence of an alcoholic
(continued...)

2
(...continued)
beverage or any abused or illegal controlled dangerous substance as
set forth in R.S. 40:964.

(2) The test or tests shall be administered at the
direction of the law enforcement officer having
reasonable grounds to believe the person to have been
operating or in physical control of the locomotive engine
while under the influence of either an alcoholic beverage
or any abused or illegal controlled dangerous substance
as set forth in R.S. 40:964. The law enforcement agency
by which such officer is employed shall designate which
of the aforesaid tests shall be administered.
. . . .

C.(1) When a law enforcement officer requests that a
person submit to a chemical test as provided for in this
Section, he shall first read to the person a standardized
form approved by the Department of Public Safety and
Corrections. The department is authorized to use such
language as it, in its sole discretion, deems proper,
provided that the form does inform the person of the
following:

(a) His constitutional rights under Miranda v. Arizona
and subsequent applicable jurisprudence.

(b) The consequences of his refusal to submit to the
chemical test.

(c) The name and employing agency of all law enforcement
officers involved in the detention, investigation, or
arrest of the person.

(2) In addition, the law enforcement officer, after
reading the form, shall request the arrested person to
sign the form. If the person is unable or unwilling to
sign, the officer shall certify that the arrestee was
advised of the information contained in the form and that
the person was unable to sign or refused to sign.

D. If a person refuses the request of the law
enforcement officer to submit to a chemical test offered
pursuant to the provisions of this Section, a test shall
not be given without a court order. A written report
shall be forwarded by the enforcement officer to the
United States Department of Transportation. The report
shall state that the officer had reasonable grounds to
believe that the person had committed a crime pursuant to
(continued...)

3
as Louisiana Revised Statute § 32:168 (Act 83), which requires the

equipping of locomotives with audible signaling devices and

requires train operators to use the devices at specified

locations;5 and 3) Senate Bill No. 100, enacted as Louisiana

Revised Statute § 32:176 (Act 87), which requires railroad

employees to inform state authorities as to whether a train

involved in an accident at a railroad crossing possesses an event

recorder.6

(...continued)
the provisions of R.S. 14:98 and that the person had refused to
submit to the test upon the request of the peace officer and had
been advised of the consequences of the refusal.

La. Rev. Stat. Ann. § 32:661.2 (West 1999).
5
In relevant part, Act 83 reads:

A. Every railroad company or person owning and operating
a railroad in this state shall equip each locomotive
engine with a bell and a whistle or horn which, under
normal conditions, can be heard at a distance of not less
than one quarter of a mile.

B. Except as specifically exempted by law, any person
controlling the motion of an engine on any railroad shall
commence sounding the audible signal when such engine is
approaching and not less than one quarter of a mile from
the place where such railroad crosses any highway. Such
sounding shall be prolonged either continuously or by
blasts of the whistle or horn to be sounded in the manner
provided by the Uniform Code of Railroad Operating Rules
until the engine has crossed the roadway, unless the
distance from that crossing to the start of the movement
or the distance between the crossings is less than one
quarter mile, in which event such warning signals shall
be so sounded for the lesser distance. In cases of
emergency said whistles or horn may be sounded in short
blasts.

La. Rev. Stat. Ann. § 32:168 (West 1999).
6
Act 87 provides in pertinent part:
(continued...)

4
 On August 17, 1998, BLE and UTU filed a lawsuit seeking pre-

enforcement review of Louisiana's newly enacted railroad safety

laws. Their complaint alleged the following claims: 1) federal law

preempts Acts 81, 83, and 87; 2) Act 81 violates the Fourth

Amendment because it allows a Louisiana law enforcement officer who

lacks probable cause to administer post-collision toxicological

testing to a railroad employee as part of a criminal investigation;

and 3) all three acts create an undue burden on interstate

commerce. On August 27, 1998, the AAR intervened in the present

action. On October 26, 1998, the district court granted summary

judgment in favor of the appellees, finding that federal law

preempts all three acts, that Act 81 violates the Fourth Amendment,

and that Act 83 creates an undue burden on interstate commerce.

Based on these findings, the district court permanently enjoined

the enforcement of Acts 81, 83 and 87.

II. Justiciability

A. Ripeness

(...continued)
Immediately following a railroad crossing accident, the
engineer or a responsible member of the crew, if the
engineer is unable to provide the information, shall
inform the law enforcement officer investigating such
accident if the train possesses an event recorder which
records and preserves any information which is relevant
to the accident or may be of assistance in the
investigation of the accident. Upon request of the law
enforcement officer, the railroad or its representative
shall provide, in a timely manner, any such information
contained on the event recorder whose release is not
prohibited by federal law, rule, or regulation.

La. Rev. Stat. Ann. § 32:176 (West 1999).

5
 No one has challenged the ripeness of this case for

adjudication. However, we must consider possible objections to our

Article III jurisdiction sua sponte. See Lang v. French, 154 F.3d

217, 222 (5th Cir. 1998). "[E]very federal appellate court has a

special obligation to 'satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a cause under

review,' even though the parties are prepared to concede it."

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S. Ct.

1003, 1013 (1998) (quoting Mitchell v. Maurer, 293 U.S. 237, 244

(1934)).

Article III of the Constitution confines the federal courts to

adjudicating actual "cases" and "controversies." U.S. Const. art.

III, § 2. In an attempt to give meaning to Article III's "case or

controversy requirement", the courts have developed a series of

principles termed "justiciability doctrines." One such doctrine

that "cluster[s] about Article III" is ripeness. Vander Jagt v.

O'Neill, 699 F.2d 1166, 1178 (D.C. Cir. 1983) (Bork, J.,

concurring). Ripeness separates those matters that are premature

because the injury is speculative and may never occur from those

that are appropriate for judicial review. See Abbott Lab. v.

Gardner, 387 U.S. 136 (1967), overruled on other grounds, Califano

v. Sanders, 430 U.S. 99 (1977).

In the present case, appellees bring suit under the

Declaratory Judgment Act, 28 U.S.C. § 22017, which provides the

7
In relevant part, the Declaratory Judgment Act reads:

(continued...)

6
statutory mechanism for seeking pre-enforcement review of a

statute. Declaratory judgments are typically sought before a

completed "injury-in-fact" has occurred, see Pic-A-State Pa., Inc.

v. Reno, 76 F.3d 1294, 1298 (3d Cir. 1996), but still must be

limited to the resolution of an "actual controversy." Aetna Life

Ins. Co. v. Haworth, 300 U.S. 227, 239-40 (1937). In other words,

despite the nature of appellees' action, we will not hear their

pre-enforcement challenge unless their suit is ripe for review.8

In New Orleans Public Service, Inc. v. Council of New Orleans,

833 F.2d 583 (5th Cir. 1987), we set forth the prevailing standards

for determining whether a dispute is ripe for adjudication. We

stated:

A court should dismiss a case for lack of "ripeness" when
the case is abstract or hypothetical. The key
considerations are "the fitness of the issues for
judicial decision and the hardship to the parties of
withholding court consideration." A case is generally
ripe if any remaining questions are purely legal ones;
conversely, a case is not ripe if further factual
development is required.

(...continued)
In a case of actual controversy within its jurisdiction
. . . any court of the United States, upon the filing of
an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such
declaration, whether or not further relief is or could be
sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be
reviewable as such.

28 U.S.C. § 2201 (emphasis added).
8
This remains true notwithstanding our observation that "[t]he
purpose of the Declaratory Judgment Act is to settle 'actual
controversies' before they ripen into violations of law or a breach
of some contractual duty." Hardware Mut. Cas. Co. v. Schantz, 178
F.2d 779, 780 (5th Cir. 1949).

7
Id. at 586-87 (internal citations omitted).

B. Act 81

Appellees allege that federal law preempts Act 81 because the

Federal Railroad Administration (FRA) has completely subsumed the

subject matter of alcohol and drug testing in the railroad

industry.9 Appellees also allege that Act 81 offends the Fourth

Amendment because it authorizes Louisiana law enforcement officers

to administer post-collision toxicological testing to railroad

employees as part of a criminal investigation even when the

officers lack probable cause. For reasons to be discussed,

appellees argument is entirely too speculative and hypothetical to

establish the existence of an Article III "case or controversy."

In short, we find that the appellees' pre-enforcement challenge to

Act 81 is not ripe for review.

Appellees' challenge sits atop a mountain of conjecture and

speculation. In order for Act 81 to run afoul of the Fourth

9
The FRA has issued numerous regulations which concern the use
and possession of alcohol and controlled substances by railroad
employees. For example, 49 C.F.R. § 219.201 sets forth the
following circumstances under which mandatory post-accident
toxicological testing is required: (1) a major train accident,
i.e., any accident involving damage of more than $6,600 in 1998;
(2) a reportable injury, i.e., any injury which results in (a)
death to any person, (b) injury to any person that requires medical
treatment, or (c) any injury to a railroad employee that results in
(i) a day away from work, (ii) restricted work activity or job
transfer, (iii) loss of consciousness, or (iv) occupation illness
of a railroad employee; (3) a fatality to any on-duty railroad
employee; or (4) a passenger train accident causing a reportable
injury to any person. Relevant to this case, however, FRA
regulations specifically exclude railroad employees from testing
“in the case of a collision between railroad rolling stock and a
motor vehicle or highway conveyance at a rail/highway grade
crossing.” 49 C.F.R. § 219.201(b).

8
Amendment, the following train of events would necessarily have to

occur: First, a train must be involved in a collision at a

Louisiana railroad crossing. Although the law of probability

suggests such a collision may be inevitable, we cannot determine

with any degree of certainty when such an event will occur.

Indeed, the Louisiana legislature may amend Act 81's challenged

terminology,10 or repeal Act 81 it in its entirety, before another

locomotive collision at a railroad crossing in Louisiana. Second,

even assuming that such a collision occurs, Act 81 does not operate

automatically in the event of a collision. Rather, a law

enforcement officer must have "reasonable grounds to believe the

person to have been operating or in physical control of the

locomotive engine while under the influence" of alcohol or other

illegal controlled substances. Clearly, there will be many cases

where an officer's suspicion does not rise to the level necessary

to trigger Act 81's application. Third, "reasonable grounds to

believe" would have to be interpreted to mean something other than

"probable cause."11 The appellees ask this court to interpret

"reasonable grounds to believe" to mean "reasonable suspicion," a

10
The parties agree that Act 81 would pass constitutional
muster had the Louisiana legislature used the terms "probable
cause" instead of "reasonable grounds to believe."
11
We are particularly concerned with allowing this pre-
enforcement challenge to a Louisiana statute where its meaning has
not been passed on by any Louisiana state court or been implemented
by Louisiana's executive branch. We observe that "reasonable
grounds to believe" could be interpreted to mean "probable cause,"
rather than some lesser form of suspicion. In the absence of an
actual controversy, we are reluctant to guess the meaning of a
statute lawfully enacted by Louisiana's legislature and signed into
law by its governor.

9
level of suspicion clearly below the "probable cause" generally

needed to justify a search in a criminal investigation.12 Finally,

a Louisiana officer would have to order such testing without

actually having "probable cause."13 In light of the extreme

prematurity of this action, we refuse to allow appellees' Fourth

Amendment facial challenge to Act 81.14

We are particularly concerned about granting pre-enforcement

review in this situation given the slight, if any, harm that

appellees may suffer if we withhold review on ripeness grounds.

First, assuming the previously outlined train of events actually

occurs, Act 81 expressly allows railroad employees to refuse a law

enforcement officer's request to undergo toxicological testing. See

La. Rev. Stat. Ann. § 32:661.2(D) (West 1999). If an employee

refuses an officer's request, Act 81 merely authorizes the law

enforcement officer to report this refusal to the Department of

Transportation. See id. This potential hardship does not convince

us that pre-enforcement review is appropriate in this case.

12
A bodily intrusion resulting from the taking of bodily
fluids constitutes a search within the scope of the Fourth
Amendment. See Skinner v.Railway Labor Executives' Ass'n, 489 U.S.
602, 617 (1989). To be deemed reasonable, a search generally must
be supported by a warrant issued upon probable cause. See National
Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989).
13
We assume, without deciding, that Act 81's predominate
purpose is to aid state law enforcement officers in the criminal
prosecution of locomotive engineers who operate locomotives while
under the influence of alcohol or other illegal controlled
substances.
14
For identical reasons, we find that any conflict between Act
81 and federal law remains entirely hypothetical, and thus,
appellees' challenge is not ripe for review.

10
 C. Acts 83 and 87

We find Act 83 ripe for judicial resolution. Act 83 imposes

immediate obligations on the railroad, including potential

equipment modifications and operating procedures. We also find Act

87 ripe for adjudication. Similar to Act 81, Act 87's requirements

depend upon a future railroad collision. However, unlike Act 81,

the only questions we need to decide are purely legal, and thus,

are appropriate for judicial review. See New Orleans Pub. Serv.,

Inc. v. Council of New Orleans, 833 F.2d 583 (5th Cir. 1987).

III. Preemption

A. General Preemption Principles

The Supremacy Clause of Article VI of the United States

Constitution provides Congress with the power to preempt state law.

See U.S. Const. art VI, cl. 2. The Supreme Court has instructed

federal courts that the historic police powers of the states are

not to be superceded by federal law unless "that was the clear and

manifest purpose of Congress." Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947). In Louisiana Public Service Commission

v. FCC, 476 U.S. 355 (1986), the Supreme Court detailed the

circumstances when a finding of preemption is appropriate:

Preemption occurs when Congress, in enacting a federal
statute, expresses a clear intent to preempt state law,
when there is outright or actual conflict between federal
and state law, where compliance with both federal and
state law is in effect physically impossible, where there
is implicit in federal law a barrier to state regulation,
where Congress has legislated comprehensively, thus
occupying an entire field of regulation and leaving no
room for the states to supplement federal law, or where
the state law stands as an obstacle to the accomplishment
and execution of the full objectives of Congress.
Preemption may result not only from action taken by

11
 Congress itself; a federal agency acting within the scope
of its congressionally delegated authority may preempt
state regulation.

476 U.S. at 368-69 (citations omitted). In any case, "[t]he

critical question is whether Congress intended that federal

regulations supersede state law." Id. at 369.

B. The Federal Railroad Safety Act

The Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20106

(formerly 45 U.S.C. § 434), was enacted "to promote safety in every

area of railroad operations and reduce railroad-related accidents

and incidents." 49 U.S.C. § 20101. In order to promote safety at

railroad grade crossings, the FRSA provides that the Secretary of

Transportation "as necessary, shall prescribe regulations and issue

orders for every area of railroad safety supplementing [existing]

laws and regulations." 49 U.S.C. § 20103. Congress expressly

defined the preemptive scope of any promulgated regulations,

stating:

Laws regulations, and orders related to railroad safety
shall be nationally uniform to the extent practicable.
A State may adopt or continue in force a law, regulation,
or order related to railroad safety until the Secretary
of Transportation 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,
or standard related to railroad safety when the law,
regulation, or order– (1) is necessary to eliminate or
reduce an essentially local safety hazard; (2) is not
incompatible with a law, regulation, or order of the
United States Government; and (3) does not unreasonably
burden interstate commerce.

49 U.S.C. § 20106.

We have previously observed that "FRSA preemption is even more

disfavored than preemption generally." Rushing v. Kansas City S.

12
Ry. Co., 185 F.3d 496, 515 (5th Cir. 1999) (internal citations

omitted).15 The restrictive terms of its preemption provision

"indicate[] that pre-emption will lie only if the federal

regulations substantially subsume the subject matter of the

relevant state law." CSX Transp., Inc. v. Easterwood, 507 U.S.

658, 664 (1993) (emphasis added). When applying FRSA preemption,

the Court eschews broad categories such as "railroad safety","

focusing instead on the specific subject matter contained in the

federal regulation. See id. at 665-75. In sum, when deciding
whether the FRSA preempts state laws designed to improve railroad

safety, we interpret the relevant federal regulations narrowly to

ensure that the careful balance that Congress has struck between

state and federal regulatory authority is not improperly disrupted

in favor of the federal government.

C. The Locomotive Boiler Inspection Act

The Locomotive Boiler Inspection Act (LBIA), as amended, 49

U.S.C. § 20701, et. seq., grants the United States the power to

regulate all "parts and appurtenances" of railroad locomotives.

The question of whether Congress intended the LBIA to preempt state
regulation of railroad parts and appurtenances was addressed by the

Supreme Court in Napier v. Atlantic Coast Line R.R. Co., 272 U.S.

605 (1926), which held that Congress intended the LBIA to "occupy

the field" of locomotive equipment regulation. Id. at 613. At

15
The Supreme Court has observed that the FRSA displays
considerable solicitude for state law in that its express
preemption provision is both prefaced and succeeded by express
saving clauses. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658,
665 (1993).

13
issue in Napier were state regulations prohibiting trains without

cab curtains and fire-box doors from operating within the state.

Although Congress had not promulgated regulations with regard to

either device, the Court held that states were not free to do so

themselves. See id. at 613. The Court found that the power

delegated to Congress was a "general one" which extended to the

"design, the construction and the material of every part of the

locomotive and tender and of all appurtenances." Id. at 611. The

Court rejected the argument that because the state regulations were
intended to address a safety concern not addressed by existing

federal regulations, the two regimes did not conflict. Id. at 612.

As the Court concluded, state regulations regarding the equipment

of locomotives are preempted "regardless of however commendable or

however different their purpose." Id. at 613. In short, the LBIA

completely preempts the field of locomotive equipment.16 See id.;

see also Missouri Pac. R.R. Co. v. Railroad Comm'n of Tex., 833

F.2d 570, 576 n.7 (5th Cir. 1987) (observing that "[s]tate attempts

to prescribe any locomotive safety equipment must necessarily

fail."). It is against this backdrop of preemption that we address
Appellants' claims.

IV. Act 83

A. Part A

16
The LBIA creates a uniform national inspection and regulation
scheme for locomotive equipment. The advantage of such a scheme is
self-evident: locomotive companies need only concern themselves
with one set of equipment regulations and need not be prepared to
remove or add equipment as they travel from state to state.

14
 Act 83, Part A, requires "[e]very railroad company or person

owning and operating a railroad in [Louisiana to] equip each

locomotive engine17 with a bell and a whistle or horn which, under

normal conditions, can be heard at a distance of not less than one

quarter mile." La. Rev. Stat. Ann. § 32:168 (West 1999). Because

the LBIA completely preempts the field of locomotive equipment,

Part A is clearly invalid. See Napier v. Atlantic Coast Line R.R.

Co., 272 U.S. 605, 613 (1926); Missouri Pac. R.R. Co. v. Railroad

Comm'n of Tex., 833 F.2d 570, 576 n.7 (5th Cir. 1987) ("State
attempts to prescribe any locomotive safety equipment must

necessarily fail."). Moreover, because the Secretary of

Transportation has promulgated regulations covering the sound

capacity of locomotive audible signaling devices, we find that the

FRSA also preempts Act 83. Like the district court, we are not

persuaded that Act 83 fits within the FRSA's exception for state

regulations which address "local safety hazard[s]."18 Thus, we

affirm the district court's ruling that both the LBIA and FRSA

preempt Act 83, Part A. We must next determine whether Part B of

Act 83 survives this finding.
Under Louisiana law, when a portion of a statute is found to

be invalid, a severability analysis is an essential element of

judicial review. See Love v. Foster, 147 F.3d 383, 385 (5th Cir.

17
We observe that Act 83 would require railroads to install
audible signaling devices on each engine on a multi-engine train.
Federal regulations require only the lead locomotive to possess an
audible signaling device. See 49 C.F.R. § 229.129.
18
We agree with the district court that the “locality
exception” applies only to local concerns, not state-wide hazards.

15
1998). Louisiana Revised Statute § 24:175, which contains the

state's general rule on severability, provides:

Unless otherwise specifically provided therein, the
provisions of each act of the legislature are severable,
whether or not a provision to that effect is included in
the act. If any provision or item of an act, or an
application thereof, is held invalid, such invalidity
shall not affect other provisions, items, or applications
of the act which can be given effect without the invalid
provision, item, or application.

Id. The Louisiana Supreme Court has determined that "[t]he test

for severability is whether the unconstitutional portions of the

law are so interrelated and connected with the constitutional
portions that they cannot be separated without destroying the

intention of the legislative body enacting the law." Police Ass'n

of New Orleans v. City of New Orleans, 649 So. 2d 951, 965 (La.

1995). Stated simply, the first question is whether the

legislature would have passed the statute without the invalid

features.

We believe that the Louisiana legislature would have passed

Part B without Part A's equipment requirements. Part B is a safety

measure designed to signal the presence of an oncoming train so
that collisions can be avoided. The Louisiana legislature would

obviously want Part B to stand alone if Part A was found to be

invalid. Simply put, the Louisiana legislature would have

presumably wanted pedestrians or drivers alerted to the presence of

an oncoming train, regardless of whether this was accomplished

through the sounding of a horn, the ringing of a bell, or the

firing of a rifle. Thus, having found Parts A and B severable

under Louisiana law, we next determine whether the FRSA preempts

16
Louisiana's signaling requirements.

As previously mentioned, regulations promulgated pursuant to

the FRSA require all lead locomotives to be equipped with audible

warning devices with a specified minimum decibel level.19 See 49

C.F.R. § 229.129. From this regulation and the fact that the High-

Speed Rail Development Act directs the Secretary of Transportation

to promulgate regulations governing the sounding of audible warning

devices,20 the Appellees argue that federal law preempts Act 83,

Part B. In short, the Appellees invite us to hold that by issuing
regulations covering audible warning equipment, the Secretary

intended to bar states from regulating the manner in which such

signals are sounded. We respectfully decline this invitation.

19
We again note that federal regulations require only the lead
locomotive to be equipped with an audible signaling device. See 49
C.F.R. § 229.129. Act 83, however, requires each engine to possess
a "bell and horn or whistle." La Rev. Stat. Ann. § 32:168 (West
1999). Obviously, in the case of multi-engine trains, Louisiana's
Act 83, Part A, imposes additional equipment requirements on
railroads.
20
The High-Speed Rail Development Act, as amended, directs the
Secretary of Transportation to promulgate regulations requiring the
sounding of a locomotive horn at every crossing:

The Secretary of Transportation shall prescribe
regulations requiring that a locomotive horn shall be
sounded while each train is approaching and entering upon
each public highway-rail grade crossing.

49 U.S.C. § 20153(b). The Secretary has not, however, promulgated
such regulations. Perhaps Congress can preempt a field simply by
invalidating all state and local laws without replacing them with
federal laws, but the High-Speed Rail Development Act discloses no
such intent. Directing the Secretary of Transportation to preempt
a field is not the same as preempting a field; here, Congress has
done the former. The parties agree that once the Secretary
prescribes such regulations, an event which appears imminent, Act
83 will be preempted in its entirety.

17
 The FRSA speaks clearly to a state's authority to regulate

railroad safety:

A State may adopt or continue in force a law, regulation,
or order related to railroad safety until the Secretary
of Transportation prescribes a regulation or issues an
order covering the subject matter of the state
requirement.

49 U.S.C. § 20106. Although the Secretary has issued regulations

covering the sound capacity of audible signaling devices, we find

that these regulations neither "cover" nor "substantially subsume"

regulations governing when such devices are sounded.21 See Rushing
v. Kansas City S. Ry. Co., 185 F.3d 496, 515 (5th Cir. 1999).

Although our decision in Rushing addressed whether the FRSA

preempts state common law nuisance claims, we find the reasoning

equally applicable to the instant case:

A sound capacity safety regulation does not subsume
regulations on when whistles are sounded. Although the
state likely could not ban the sounding of whistles by
banning them altogether, because it would defeat the
purpose of the whistle capacity provision, it can impose
restrictions on when they are sounded.

Id. at 516 (emphasis added) (internal citations omitted); see also

Southern Pac. Transp. Co. v. Public Util. Comm'n of Or., 9 F.3d 807
(9th Cir. 1993) (distinguishing between whistle capacity and

whistle use, and holding that federal regulations governing the

former do not preempt the latter). Thus, we find that Act 83, Part

B, is not preempted by federal law.

21
We realize that state regulations governing the manner in
which signaling devices are used may require railroads to equip
their trains with parts not required by federal regulations. We
are not confronted with such a situation in this case, and thus, we
refuse to decide whether such regulations would be preempted by the
LBIA or FRSA.

18
 B. Part B

Having found that federal law does not preempt Act 83, Part B,

we must determine whether Part B places an undue burden on

interstate commerce. Instead of addressing this specific question,

the district court focused on the combined effect of Part A and

Part B on interstate commerce, finding that Act 83 would require

railroads to stop at state boundaries and make equipment changes.

The parties never really addressed this issue until oral

arguments, at which time they indicated that meeting Part B's
requirements would require railroads to relocate their "whistle

posts," i.e., the posts that advise the engineers when to sound

their whistles.22 At oral argument, appellees argued that this

requirement would create an undue burden on interstate commerce.

Appellants argue that Act 83 meets the test laid down by the

Supreme Court in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).23

Appellants also argue that Act 83's effect on interstate commerce

cannot be determined without additional fact-finding by the

district court. We agree.

22
The district court also found that Act 83 would require
railroads to alter their whistle posts. The district court used
this latter finding of potentially "irreparable injury" to justify
its preliminary injunction against enforcement of Act 83. The
district court did not, however, specifically find that requiring
railroads to relocate their whistle posts would create an undue
burden on interstate commerce.
23
In Pike, the Supreme Court held that where a state statute
regulates even-handedly to effectuate a legitimate local public
interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local
benefits. 397 U.S. 137, 141 (1970)

19
 Unlike the district court, we are unable to determine on the

basis of an empty record whether forcing railroads to comply with

Part B alone would create an undue burden on interstate commerce.

Because neither the parties nor the district court seem to have

given this issue much thought, and because the record is devoid of

any evidence that could help us decide this issue, we remand to the

district court for a determination of this issue.

V. Act 87

In the event of a railroad crossing collision involving a
locomotive, Act 87 requires railroad employees to notify the law

enforcement officer investigating the accident of the existence of

an event recorder on the train. See La. Rev. Stat. Ann. § 32:176

(West 1999). Upon request of the investigating law enforcement

officer, the railroad is also directed to release any information

contained on the event recorder to the extent allowed by federal

law. See La. Rev. Stat. Ann. § 32:176 (West 1999). For reasons to

be discussed, we find that the district court correctly found that

federal regulations preempt Act 87.

In 1994, Congress directed the Secretary of Transportation to
promulgate regulations and issue orders to enhance safety by

requiring that a train be equipped with an event recorder. See 49

U.S.C. § 20137. Pursuant to this requirement, the FRA has

promulgated regulations specifically covering the requirements for

an event recorder. See 49 C.F.R. §§ 229.5, 229.25, 229.135. Among

other provisions, the regulations require that a railroad whose

locomotive is involved in an accident shall preserve the recorded

20
data for analysis by the FRA or National Transportation Safety

Board (NTSB). See id. The regulations also provide, however, that

information contained on the event recorders "shall not be utilized

for analysis or any other purpose except by direction of the FRA or

NTSB." See 49 C.F.R. § 229.135(d)(1). We agree with the district

court that the Secretary has issued regulations governing the use

of information on event recorders that clearly preempt Act 87.24

VI.

To summarize, we AFFIRM the district court's finding that
federal law preempts Act 87 and Part A of Act 83, and REMAND for a

determination of whether Part B of Act 83 creates an undue burden

on interstate commerce. Finally, we find that the appellees'

challenge to Act 81 is not ripe for judicial review.

AFFIRMED IN PART AND REMANDED.

24
The practical effect of our holding may be limited. States
will remain free to investigate potential violations of their
criminal statutes through traditional means, including subpoenaing
the information from the proper officials. Federal regulations
provide that:

Nothing in this section is intended to alter the legal
authority of law enforcement officials investigating
potential violation[s] of State criminal law[s].

49 C.F.R. § 229.135. States cannot, however, impose the
affirmative duty on railroad employees to seek out state law
enforcement officers and notify them of the existence of an event
recorder and disclose information contained therein. Federal
regulations preempt such requirements.

21