Lead Opinion
OPINION OF THE COURT
MD Mall Associates, L.L.C. (“MD Mall”), appeals from the summary judgment entered against it by the United States District Court for the Eastern District of Pennsylvania on MD Mall’s claims that CSX Transportation, Inc. (“CSX”), a railroad, is liable for storm water flooding MD Mall’s property. For the reasons that follow, we will vacate the District Court’s grant of summary judgment, and remand for further proceedings consistent with this opinion.
A. The Runoff Problem
MD Mall owns and operates the Mac-Dade Mall (the “Mall”) located in Delaware County, Pennsylvania. The Mall is bounded on the south by a single railroad track owned by CSX, and, interestingly enough, on the east by South Avenue. CSX’s property consists of the track and two drainage ditches, one running along either side of the track. Houses located to the south of the track are at a higher elevation than the track, and the track is at a higher elevation than the Mall. CSX’s predecessor in interest designed and installed an earthen berm on the north side of the track to prevent storm water from flowing downhill onto the property occupied by the Mall. The berm straddles the property line of the Mall and the railroad, with the north side of it sloping down into the parking lot. The Mall claims ownership of that slope up to the crest of the berm.
For many years after being built, the berm prevented storm water from discharging onto MD Mali’s property. In October 2010, however, storm water breached the berm at a spot near South Avenue, allowing water runoff and debris from CSX’s property to flow down the slope and overwhelm a private storm water inlet located in the Mall parking lot. An MD Mall representative sent two letters, dated October 29, 2010, and.January 13, 2011, asking CSX to contact him to discuss a resolution to the. runoff problem. In response, CSX’s road master responsible for that portion of the track inspected the site. Based on the road master’s findings, a CSX engineer wrote in an internal memorandum that, “[flnstead of the water flowing over the crossing [at South Avenue] and down the road towards the storm drains, it is not reaching the crossing and [is] instead running towards the [Mall] property.” (App. at 56.) The engineer proposed that CSX dig a “[d]itch” on CSX property “along the area and block the hill leading to the property, allowing the water to flow into the road and- down to [a public] storm drain.” (App. at 56.) He also raised the possibility of installing a culvert under South Avenue to send the water to a nearby stream. In an email dated January 20, 2011, the engineer notified MD Mall that CSX intended to implement the first option, which was less costly, and that it would complete the project “in a timely fashion.” (App. at 57.)
Despite that assurance, CSX did not go forward with that plan. Instead, it began constructing a concrete spillway on the Mali’s side of the berm to direct CSX’s storm water into the Mall’s private drainage inlet. CSX workers cleared out a channel on the berm and set up wooden forms to create the spillway, all of which MD Mall asserts was done without its consent, while CSX claims that MD Mall had consented to the installation in order to stop múd and debris from entering the Mall property.
Whether or not there had been consent, when the Mali’s manager discovered what CSX was doing, he immediately halted the work, demanding that the wooden forms be removed and that the Mall’s side of the berm be restored to its original grade. CSX agreed to halt construction of the spillway, but requested permission to install riprap in the cleared out channel.
B. Procedural History
MD Mall brought claims of negligence (Count I) and continuing storm water trespass (Count II) against CSX for “failing to properly maintain .CSX’s property so as to prevent water on CSX’s property from flowing over onto [MD Mall’s] property and causing damage.....”
Both parties moved for summary judgment. MD Mall had learned during discovery that, in March 2009, CSX had refurbished the relevant portion of the track, deploying, approximately 30 pieces of heavy equipment - to replace 325 railroad ties. Based on that information, MD Mall argued in its motion for summary judgment that the “substantial modifications to the tracks’ drainage system” in 2009 “led to the discharge of CSX’s water run-off onto the Mall Property and the noticeably deep property erosion by fall 2010.” (Supplemental App. at 80.) For support, MD Mall cited the deposition testimony of its expert, Dr. Frank X. Browfte, who identi-fled the source of the water problem as CSX’s 2009 alteration of the drainage system and the hydrological condition of the property. MD Mall also asserted that, for five years, CSX had failed to clear out the ditch adjacent to the berm.
The fact that storm water had discharged from CSX’s property onto MD Mali’s property was evidence, according to MD Mall, that CSX had violated a federal regulation enacted pursuant to the Federal Railroad Safety Act (the “FRSA” or the “Act”), which “require[s] that CSX manage and control the stormwater occurring on its property.” (Supplemental App. at 90.) That regulation provides that “[e]ach drainage or other water carrying facility under or immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to accommodate expected water flow for the area concerned.” 49 C.F.R. 213.33. MD Mall argued that § 213.33 imposed on CSX a duty to ensure that the earthen berm system that was designed to prevent water from flowing onto the Mall property is properly maintained. (Supplemental App. at 90.) Given the erosion of the berm and the consequent flooding, MD Mall continued, “CSX is clearly not accommodating the expected water flow from its property, as required under Section 213.33.”
The District Court saw things differently. It granted CSX’s cross-motion for summary judgment, holding that MD Mali’s claims were blocked by the express preemption provision of the FRSA. Because MD Mall had asserted that CSX was in violation of § 213.33, the District Court held that MD Mall had “implicitly ac-knowledgefd]” that the regulation is applicable to its claims (App. at 7), and the Court then determined that the claims were preempted.
The District Court rejected MD Mali’s argument that its negligence and continuing storm water trespass claims were subject to the Clarification Amendment. While state law actions are permitted to proceed when they allege a failure to comply with a federal standard of care, the Court held that the Amendment is limited to cases “ ‘seeking damages for personal injury, death, or property damage.’ ” (App. at 8 (quoting 49 U.S.C. § 20106(b)(1)).) Because MD Mall “appears to have disavowed any claim for damages and is instead seeking only equitable relief,” the Court determined that the Amendment did not apply.
MD Mall then filed this timely appeal.
II. Discussion
A. Waiver and Judicial Estoppel
MD Mall has now discarded its previous position that § 213.33 sets the
1. Waiver
Arguments that are “asserted for the first time on appeal are deemed to be waived and consequently are not susceptible to review ... absent exceptional circumstances.” Birdman v. Office of the Governor,
2. Judicial Estoppel
CSX also contends that MD Mall is judicially estopped from claiming that § 213.33 does not cover its claims. “Judicial estoppel is a judge-made doctrine that seeks to prevent a litigant from asserting a position inconsistent with one that [it] has previously asserted in the same or in a previous proceeding.” Macfarlan v. Ivy Hill SNF, LLC,
“[T]hree factors inform a federal court’s decision whether to apply” judicial estoppel: “there must be (1) irreconcilably inconsistent positions; (2) adopted in bad faith; and (3) a showing that estoppel addresses the harm and no lesser sanction is sufficient.” G-I Holdings, Inc. v. Reliance Ins. Co.,
As MD Mall correctly points out, however, the District Court’s citation of MD Mall’s acknowledgment that § 213.33 covers its claims does not rise to the level of reliance necessary to trigger judicial estoppel. Before determining that judicial estoppel bars relief, “courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.” New Hampshire v. Maine,
Judicial estoppel thus does not apply here because MD Mall did not obtain a benefit from the arguments it made in the District Court. The arguments it made did not prevail in any meaningful sense. The District Court instead granted summary judgment to CSX. In the decisions that CSX cites to support its judicial estop-pel argument, by contrast, judicial estoppel was found to bar relief because each es-topped party had obtained an unfair litigation benefit as a result of its prior contradictory position. See New Hampshire,
B. Express Preemption Under the FRSA
As already noted, the FRSA provides that a state “law, regulation, or order related to railroad safety” shall be preempted by a regulation or order issued by “the Secretary of Transportation (with respect to railroad safety matters)” that “cover[s] the subject matter of the State requirement.” 49 U.S.C. § 20106(a)(2). Pursuant to the previously described 2007 Clarification Amendment to that express preemption provision, even though a federal regulation “covers” a state law related to railroad safety, a plaintiff may still bring claims “seeking damages for personal injury, death, or property damage” when the plaintiff “alleg[es] that a party ... has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of
In Zimmerman v. Norfolk Southern Corp.,
Zimmerman calls for us to follow a two-step process: “We first ask whether the defendant allegedly violated either a federal standard of care or an internal rule that was created pursuant to a federal regulation.” Id. at 178. If so, as was the case in Zimmerman, “the plaintiffs claim avoids preemption.” Id. (citing 49 U.S.C. § 20106(b)(1)(A)-(B)). If not, we ask the second question, which is “whether any federal regulation covers the plaintiffs claim.” Id. (citing 49 U.S.C. § 20106(a)(2)).
This case is different from Zimmerman in that, on appeal, MD Mall has abandoned the argument that CSX violated a federal standard of care and instead insists that the pertinent federal regulation, § 213.33, does not cover a storm water discharge dispute of the type before us now.. (MD Mall’s Opening Br. at 11.) Thus, MD Mali’s claims are only preserved from preemption if no federal regulation enacted pursuant to the FRSA “cover[s] the subject matter [i.e. storm water runoff] of the State requirement.” 49 U.S.C. § 20106(a)(2).
Beyond those general principles, the Supreme Court has determined that the FRSA’s preemption provision “displays considerable solicitude for state law.”
We accordingly held in Strozyk v. Norfolk Southern Corp.,
CSX argues that § 213.33, which by its terms requires that a railroad’s drainage facilities “under or immediately adjacent to” the track “be maintained and kept free of obstruction,” 49 C.F.R. § 213.33, preempts Pennsylvania law governing storm water runoff. As the railroad sees it, MD Mali’s claims ipust be dismissed because § 213.33 “cover[s] the subject of drainage under and around the tracks — and therefore preempts] the Mall’s claims, which concern precisely the same topic.”
We reject that conclusion. First, to the extent CSX is saying that, as long as a regulation involves the same general topic as a plaintiffs claim, such as water drainage, the regulation “covers” that claim, the argument is at odds with Supreme Court precedent. A regulation must do more than “touch upon or relate to [the] subject matter” of a state law claim; it must “substantially subsume” it. Easterwood,
Second, the type of harm sought to be avoided by § 213.33 is wholly different than the harm alleged by MD Mall. Several courts interpreting the Federal Employers Liability Act (“FELA”), 45 U.S.C. §§ 51-60, which protects railroad employees from railroad negligence,
Section 213.33 is, by CSX’s own admission, plainly intended to prevent water from pooling on or around railroad tracks and thus to avoid potentially dangerous conditions occasioned by standing water, such as the presence of debris on tracks, icing conditions, and compromised track integrity. There is no indication whatsoever that it was intended to address storm water discharge onto a neighboring property, which is the harm alleged by MD Mall.
Finally, the position advocated by CSX — that because § 213.33 does not prohibit storm water discharge onto adjoining property it therefore permits it — is troubling because, as the Tenth Circuit said in Emerson v. Kansas City Southern Railway Co.,
The plaintiffs in Emerson alleged that, when the defendant railroad replaced old, deteriorated rail ties, it “regularly discarded” the ties in a nearby drainage ditch. Emerson,
In line with that persuasive reasoning, we must take a sensible view of the FRSA’s preemption provision, avoiding the carte blanche ruling the railroad ■ seeks. Longstanding state tort and property laws exist for a reason, and the FRSA’s laudatory safety purpose should not be used as a cover to casually cast them aside. See Easterwood,
C. Implied Conflict Preemption
Even though the FRSA’s express preemption provision does not operate to extinguish MD Mall’s claims, the present lawsuit may be “pre-empted by implication because the state-law principle [it] seek[s] to vindicate would conflict with federal law.” Freightliner Corp. v. Myrick,
Conflict preemption thus embraces two distinct situations. In the easier' but rarer case, compliance with both federal and state duties is simply impossible. See, e.g., Southland Corp. v. Keating,
We can confidently conclude that this case is not of the former variety. As CSX’s engineers suggested when studying the breakdown of the berm, the runoff problem -is remediable, though at some cost to the company, and it is therefore not impossible for CSX to comply both with
We are less confident, however, in saying that Pennsylvania law does not, “under the circumstances of [this] particular case, ... stand[ ] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Crosby,
It may be that, in the maintenance of the drainage facilities that are under and immediately adjacent to the portion of the track in question, CSX is unable, through reasonable means, to prevent the flow of storm water onto MD Mall’s property. Again, since the railroad managed for years to deal with its drainage without affecting the Mall, one wonders how it can have become an unreasonable burden now, but we have virtually no factual record on the issue and so cannot definitively address it. The District Court is in a better position to make the necessary factual inquiry, and we will therefore remand for the development of an appropriate record.
For the foregoing reasons, we will vacate the District Court’s order granting summary judgment in CSX’s favor, and will remand the case for further proceedings consistent with this opinion.
Notes
. In accordance with our standard of review, see infra note 6, we set forth the facts in the light most favorable to MD Mall. See Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 257 (3d Cir.2012) (“When reviewing a grant of summary judgment the court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” (internal quotation marks omitted)).
. MD Mall also brought a separate trespass claim (Count III) against CSX for entering the Mali’s property without permission to build the concrete spillway on the Mall’s side of the berm. After the District Court granted summary judgment to CSX on Counts I and II but denied summary judgment on Count III, MD Mall withdrew Count III.
. See also MD Mali's Supplemental Mem. in Opp’n to CSX’s Motion for Summ. J. at 6 (arguing that the "clear mandate” of § 213.33 is that CSX must "manage the stormwater on its property so that it is not discharged on to the Mall property in a concentrated and increased way").
. The District Court mentioned that another regulation, 49 C.F.R. § 213.103, relates to MD Mali’s claims. Section 213.103 requires railroad tracks to be supported by material that will, among other things, "[p]rovide adequate drainage for the track.” Id. § 213.103(c).
. Because the District Court concluded that MD Mall's claims were preempted by the FRSA, it declined to address CSX’s alternative argument that the claims were preempted by the Interstate Commerce Commission Termination Act (the "ICCTA”). It also declined to evaluate the underlying substantive merits of MD Mall's state law negligence and storm water trespass claims.
.The District Court had jurisdiction under 28 U.S.C. § 1332, and we have jurisdiction under 28 U.S.C. § 1291. We "review [the] District Court's grant of summary judgment de novo, applying the same standard the District Court applied.” Gonzalez v. Sec’y of Dep't of Homeland Sec.,
. The universe of possible claims can be thought of as fitting within three categories: first, those, like the ones in Zimmerman, that depend upon the breach of a standard set by federal law (or adopted by a railroad from federal law) as the basis of liability and are thus not preempted; second, those that depend on state law as the basis for liability but which are preempted because there is an applicable FRSA regulation that entirely covers the plaintiff's claim; and, third, those that depend on state law and are not preempted because there is no such regulation. The first Zimmerman question seeks to discover which claims fall within the first category, and the second Zimmerman question brings to light the claims that fall within the latter two categories.
. Although MD Mall has abandoned its argument under the Clarification Amendment and we therefore need not evaluate whether the Amendment applies here, it did argue in the District Court, as already described, that § 213.33 “require[s] that CSX manage and control the stormwater occurring on its property” (Supplemental App. at 90), and that CSX breached that duty through negligence during the 2009 track refurbishment. It said that it was therefore authorized to bring
The Clarification Amendment was a pinpoint piece of legislation meant to overturn federal court decisions in the so-called "Minot Derailment Cases.” Those cases, which involved the horrifying derailment near Minot,
Aimed as it was at the specific difficulty Congress perceived in the Minot Derailment Cases, the Clarification Amendment speaks only about claims for damages, but that does not mean that suits for injunctive relief are beyond its clarifying effect. Congress used the word "clarification,” which "indicates [it] sought to resolve an ambiguity rather than effect a substantive change” in railroad liability under the FRSA. Henning,
. CSX also asserts that 49 C.F.R. § 213.103(c), which requires railroads to use
. Although FELA is a federal statute and federal preemption "is inapplicable to a potential conflict between two federal statutes,” Tufariello v. Long Island R.R. Co.,
. The dissent claims that, in looking to the type of harm sought to be avoided by an FRSA regulation, we are flouting Easter-wood' s "unequivocal instruction” that, "in determining the preemptive effect of a regulation, the only question is whether the regulation covers the subject matter.” (Dissent Op. at 499 (citing Easterwood,
Our colleague’s reading of Easterwood is out of context. When the Supreme Court made that statement, it had already established that the train speed regulation in question "should be understood as covering the subject matter of train speed with respect to track conditions, including the conditions posed by grade crossings.” Easterwood,
Our dissenting colleague counters that ”[t]he nature of the harm [addressed by a regulation] is ... irrelevant in determining ‘coverage.’ ” (Dissent Op. at 499 n. 7.) That, however, denies that the purpose of a regulation bears on its scope. We see nothing in Easterwood to support that extraordinary claim, which is contrary to ordinary rules of construction, in general, see Crandon v. United States,
An analogy to § 213.33 brings clarity to the matter. Section 213.33 seeks to prevent harms associated with water pooling on or around railroad tracks — harms such as icing conditions, compromised track integrity, a greater likelihood of dangerous obstructions occasioned by standing water, and the like. An allegation that such conditions led to an accident would be "covered” by § 213.33, regardless of whether the actual harm caused by the alleged condition was great (e.g. a train derailment) or relatively small (e.g. a slip and fall). Whether the Secretary had train derailments foremost in mind in promulgating § 213.33 is irrelevant, in other words, because the regulation seeks generally to avoid harms caused by an inadequately drained track.
Related as it is to railroad safety — as it must be under 49 U.S.C. § 20106(a)(2) — § 213.33 does not seek to avoid the harms associated with a railroad’s discharge of storm water onto an adjoining property. Whether the railroad disposes of its runoff by channeling it to the public storm water system or to its neighbor's property is irrelevant to the regulation’s railroad safety.purpose. And given that the regulation and the FRSA do not otherwise relieve railroads of their state law duties to their neighbors we are reluctant to hold that § 213.33 “covers” MD Mali's storm water discharge claims.
. The dissent characterizes our analysis as holding that, “even if [the] FRSA clearly covers the conduct of a railroad, such that the matter is preempted undér Easterwood, a claimant could, nonetheless, assert a claim for any resulting or consequential injury that flows from the covered conduct.” (Dissent Op. at 498.) Viewing our analysis in that way, the dissent claims that we “gut ... preemption analysis” and “turn[] preemption on its head,” which "will bring about needless confusion in our jurisprudence as to the proper preemption analysis.” (Id. at 500.) Our opinion here does no such thing. When a regulation covers (in that it substantially subsumes) a plaintiffs state law claims, the FRSA applies, and the suit will be preempted, assuming the Clarification Amendment does not revive it. Our conclusion is that § 213.33, which requires railroads to maintain systems that adequately drain water away from the track, does not substantially subsume MD
. The Court in Myrick rejected "the argument that [it] need not reach the conflict preemption issue at all” because “implied preemption cannot exist when Congress has chosen to include an express pre-emption clause in a statute.” Myrick,
. Of course, any analysis of conflict preemption requires an inquiry into the dictates of the state law in question, for if state law does not prohibit a railroad from discharging storm water onto an adjoining land under the circumstances of this case, there is no conflict of law. Because the District Court did not evaluate the underlying merits of MD Mall’s storm water trespass or negligence claims, but rather avoided them on FRSA preemption grounds, on remand we will allow the District Court to have a first pass at those questions. Cf. Strozyk,
In addition, we will leave it to the District Court on remand to address, if necessary, CSX’s additional argument that MD Mall’s claims are preempted under the ICCTA, the Interstate Commerce Commission Termination Act.
Finally, given our invocation of the public importance exception to the waiver doctrine to allow MD Mall to press its new argument, MD Mall is estopped from arguing on remand that § 213.33 imposes a duty on CSX to prevent storm water discharge onto a neighboring property and that CSX failed to comply with the supposed standard of care created by that duty. Otherwise, we would be allowing MD Mall for the third time to ”assert[] a position inconsistent with one that [it] [had] previously asserted in ... a previous proceeding.” Macfarlan,
. See, e.g., S.A. 98-99 (“Therefore, based upon the clarifying amendment, claims alleging that the railroad failed to comply with federal regulations are not preempted by the FRSA.”) (emphasis added), S.A. 110-13, S.A. 160-61, S.A. 165 ("We are suing under a state law that is identical to federal regulations, they both say the same thing ... thou shall maintain your water.”).
Dissenting Opinion
dissenting.
I dissent from the majority’s opinion because I believe its analysis veers from Supreme Court precedent in the area of FRSA preemption. When the Mall commenced this action in District Court complaining of CSX’s failure to maintain its stormwater drainage, it urged that, applying the “coverage” test for preemption that the Supreme Court established in CSX Transportation, Inc. v. Easterwood,
Each drainage or other water carrying facility under or immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to accommodate expected water flow for the area concerned.
The Mall contended that, although the regulation covered the subject matter of its state law claims, the claims were not preempted because the Clarifying Amendment applied.
The District Court agreed with the Mall that § 213.33 covered the subject matter of the Mall’s state law claims, but held that the Clarifying Amendment did not apply because the Mall requested only injunctive relief — not damages. Dissatisfied with this result, the Mall now comes to our Court with a new approach for gaining an injunction. It now contends that § 213.33 does “not even relate to, let alone cover, a railroad’s discharge of stormwater onto an adjoining property.” (Appellant’s Opening Br. at 11.) In other words, it argues the direct opposite of what it pleaded and consistently urged below.
In furtherance of this epiphany, the Mall urges that CSX’s stormwater is not really a drainage issue that § 213.33 regulates. Rather, it contends that the stormwater should be viewed as “flow” or “runoff” onto an adjoining property. The majority has embraced this argument. I conclude, however, that the Mall was right the first time: § 213.33 clearly covers the subject matter of its claims, and under Easter-wood, that is the only issue that matters. In Easterwood, the Supreme Court framed the critical preemption FRSA inquiry: does the regulation at issue “substantially subsume the subject matter of the relevant state law[?]”
First, an examination of the physical layout of the area reveals that the hillside leading to the Mali’s property — the site of the alleged negligence — is immediately adjacent to the roadbed.
Second, analytically, the Mall’s own characterization of CSX’s misconduct belies its assertion that § 213.33 does not cover CSX’s conduct. The Mall repeatedly and consistently articulates CSX’s conduct as its failure to manage the storm water on its property
The Mall and the majority arrive at this conclusion by focusing on what they believe to be the intent of the regulation. The majority reasons: “There is no indication whatsoever that it was intended to address storm water discharge onto a neighboring property, which is the harm alleged by MD Mall.” See Majority Op. at 492 (emphasis added). However, this approach is directly contrary to the Supreme
The sparse case law discussing § 213.33 is consistent with this reasoning. For example, in Rooney v. City of Philadelphia, property owners brought suit against AMTRAK alleging that runoff and drainage problems resulted in flooding that “caus[ed] extensive damages to Plaintiffs’ properties and businesses.”
Further, the Mall’s and the majority’s position that a court may dictate how a railroad handles its stormwater drainage runs afoul of FRSA’s statutory scheme. FRSA states that the Secretary of Transportation has the “exclusive authority” to “request an injunction for a violation of a railroad safety regulation.” 49 U.S.C. § 20111(a)(2). The scope of the work to be done to remedy the condition at the CSX roadbed, berm, and adjacent hillside is the concern of the Secretary. The proposition that a court should refrain from involving itself in that subject matter is what preemption is all about. The consistency, uniformity, and safety concerns, that underlie these types of regulations should not be minimized or ignored.
Finally, from a practical perspective, there is no reason to gut our preemption analysis to provide the Mall with a remedy. To the extent the Mall is actually harmed, the Mall could proceed under the Clarifying Amendment with a request for damages for any property damage that it suffers — as it did originally before limiting itself to injunctive relief. The Mall could also bring the matter to the attention of the Secretary of Transportation, requesting that he issue an injunction that compels CSX to comply with § 213.33.
For the foregoing reasons I believe that the Mall’s position, which the majority adopts, is flawed. The most important reason, however, is that it runs afoul of Easterwood’s holding that the key question is whether the regulations “substantially subsume the subject matter” of the relevant state law. Here, § 213.33 does just that. Easterwood is very clear, but the majority’s holding turns preemption on its head and will bring about needless confusion in our jurisprudence as to the proper preemption analysis. I, therefore, respectfully dissent.
. "Roadbed” refers to “the area under and adjacent to the tracks.” Anderson v. Wis.
. Ditch lines abut and run parallel to the roadbed. When it rains, water flows from the roadbed into the ditches. The Mall contends that the drainage problem is the result of CSX’s failure to maintain the ditch that borders the Mall’s property. (A. 119 (Compl.HK 10-11).) Although the parties do not provide the dimensions of the area, it is clear that the ditch line is immediately adjacent to the roadbed.
. See Am. Compl. at A. 117, A. 121, A. 123; MD Mall’s Mem. of Law in Supp. of MD Mali's Motion for Summ. J. at S.A. 71, S.A. 82, S.A. 90 ("CSX is clearly not accommodating the expected water flow from its property, as required under Section 213.33.”), S.A. 91 ("CSX has failed to properly control its water run-off from illegally discharging on to [sic] the Mall Property.”); MD Mall's Response in Opp. to CSX’s Motion for Summ. J. at S.A. 93-94 ("CSX should be managing its stormwater so that it drains without causing damage to the Mall property.”), S.A. 99; Appellant's Br. at 14, 29 ("[T]he stormwater problem arose on [CSX’s] property and it controls its property.”); Appellant’s Reply Br. at 26.
.If this were not the case, the Clarifying Amendment’s allowance of claims for resulting harm would have been unnecessary. The Clarifying Amendment applies to claims for damages for actual harm, and the District Court correctly held that injunctive relief is not allowed. That is the province of the Secretary of Transportation, as I note below.
. Referring to FRSA’s preemption provision.
. The majority's reading of the analysis in Easterwood as concerned with the harm that the regulation was intended to prevent, see Majority Op. at 492-93 n. 11, is incorrect. Easterwood involved an inquiry into whether a very specific regulation — ^setting train speed caps — should be read expansively to cover, i.e. subsume, the subject matter of train speed safety. The Supreme Court was determining the scope of the regulation — not, as the majority posits, "the harm sought to be avoided by the relevant regulation.” Majority Op. at 492 n. 11. These are different inquiries. The Supreme Court adopted an expansive view of the scope of the regulation, based on an examination of what was considered in adopting the regulation — overall safety, not merely speed caps.
. The majority does not cite one case that addresses § 213.33. In discussing whether the regulation “covers” the subject matter of the Mall’s claims, the majority cites cases where the regulation "merely touched upon” the subject matter of a plaintiff’s claims or cases that did not reach the issue in the fact pattern before this court. The majority relies heavily on Emerson v. Kansas City Southern Railway Company,