305 P.3d 13
Kan. Ct. App.2013Background
- Wichita Terminal Association owns and operates two sets of railroad tracks along a 30-foot right-of-way in Wichita; FYG owns adjacent property to the south.
- 2008 district court journal entry ordered the WTA to construct a permanent crossing at Emporia Court and to install crossing protection under FRA rules, with a 90-day deadline for the crossing and no appeal filed.
- FYG sought ingress/egress rights and the district court previously held FYG lacked an ingress right, while later remands required viability analyses for crossing options.
- Over time, the district court on remand found the most viable solution was removal of the north track and laying a new south track to enable a compliant permanent crossing.
- The January 25, 2012 district court order required removal of the north track and new track placement to enable a MUTCD-compliant crossing, while preserving a temporary crossing in the interim.
- WTA timely argued that ICCTA vests exclusive STB jurisdiction over track removal/construction and preempts state-law remedies; the appeal seeks preemption-based relief and STB involvement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ICCTA preempt state remedies to remove or relocate tracks for a crossing? | WTA: STB exclusive jurisdiction preempts removal/remodeling orders. | FYG: district court remedies may proceed; or at least preemption should limit state orders. | STB exclusive jurisdiction preempts removal/relocation orders; remand with STB involvement. |
| Is WTA's preemption defense timely and preserved for appeal? | WTA timely asserted STB jurisdiction and preemption defense. | FYG contends preemption not properly raised as a defense. | WTA timely preserved the preemption issue for review. |
| What is the proper remedy given STB jurisdiction over track construction/removal? | WTA should pursue STB proceedings; district court should defer. | District court remedies are appropriate if feasible under STB oversight. | Remand to require WTA to file with STB to resolve jurisdictional issues; district court may enforce interim crossing. |
Key Cases Cited
- Chicago & N.W. Tr. Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (U.S. 1981) (ICC/board authority is plenary and exclusive over rail regulation)
- Norfolk Southern Ry Co. v. City of Alexandria, 608 F.3d 150 (4th Cir. 2010) (state laws prohibiting rail operations preempted by ICCTA)
- Port City Properties v. Union Pacific R. Co., 518 F.3d 1186 (10th Cir. 2008) (STB authority over spur/industrial tracks preempts state regulation)
- Emerson v. Kansas City Southern Ry. Co., 503 F.3d 1126 (10th Cir. 2007) (preemption analysis recognizes field/conflict preemption and congressional intent)
- Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 255 P.3d 1186 (Kan. 2011) (state regulatory powers limited by express preemption in ICCTA context)
- City of South Bend, IN v. Surface Transp. Bd., 566 F.3d 1166 (D.C. Cir. 2009) (STB jurisdiction and rail regulation controls influence on state actions)