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Wichita Terminal Association v. F.Y.G. Investments, Inc.

Court of Appeals of Kansas

July 2, 2013

Wichita Terminal Association, Burlington Northern & Santa Fe Railway Company, and Union Pacific Railroad Company, Appellants,
v.
F.Y.G. Investments, Inc., and Treatco, Inc., Appellees.

SYLLABUS

1. The Supremacy Clause of Article VI of the United States Constitution, which establishes the doctrine of federal preemption, invalidates state laws that interfere with, or are contrary to, federal law.

2. Because federal preemption involves an interpretation of law, appellate courts have an unlimited standard of review.

3. Federal preemption is ultimately a question of congressional intent. Express preemption occurs when Congress makes its intent known through explicit statutory language. Implied preemption occurs when Congress does not expressly preempt state law, but its intent to do so can be inferred from a statutory or regulatory scheme.

4. The Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. 10101 et seq. (2006), created the Surface Transportation Board to regulate rail transportation in the United States. 49 U.S.C. § 10501(a)(1) (2006).

5. Congress has granted the Surface Transportation Board exclusive jurisdiction over the construction, acquisition, operation, abandonment, or discontinuance of railroad tracks and facilities. Furthermore, Congress has expressly stated that the remedies with respect to regulation of rail transportation set forth in the ICCTA are exclusive and preempt other remedies provided under federal or state law. 49 U.S.C. § 10501(b).

6. The ICCTA preempts all state or local laws that may reasonably be said to have the effect of managing or governing the operations of a rail carrier.

7. States and municipalities may continue to exercise traditional police powers to protect public health and safety so long as the application of such laws or regulations has only a remote or incidental effect on rail transportation.

8. The Surface Transportation Board has exclusive jurisdiction over the question of whether a rail carrier should be required to remove existing railroad track and construct a new track in order to install a permanent railroad crossing at a specific location. It is also within the exclusive jurisdiction of the Surface Transportation Board to determine whether requiring the construction of a permanent railroad crossing at a specific location unreasonably burdens or interferes with interstate commerce.

Appeal from Sedgwick District Court; Joseph Bribiesca, judge.

Jeffrey R. King, of Lathrop & Gage LLP, of Overland Park, and K. Paul Day and Doug Dalgelish, of the same firm, of Kansas City, Missouri, for appellants.

James D. Oliver, of Foulston Siefkin LLP, of Overland Park, and Wyatt A. Hoch, of the same firm, of Wichita, for appellees.

Before Pierron, P.J., Bruns and Powell, JJ.

MODIFIED OPINION

BRUNS, J.

This is the third appeal in a dispute over access to real property. The Wichita Terminal Association, Burlington Northern & Santa Fe Railway Company, and Union Pacific Railroad (collectively WTA) own and operate railroad tracks in Wichita. F.Y.G. Investments, Inc., and Treatco, Inc. (collectively FYG) own real property adjacent to the WTA's tracks. In 2008, the WTA was ordered to provide access—by way of a permanent railroad crossing—from a public street to FYG's real property.

In the present appeal, although the WTA does not dispute the district court's authority to require it to install a permanent railroad crossing to provide access to FYG's property, it contends that federal law preempts state courts from requiring interstate rail carriers to remove or reconstruct existing tracks in order to install a permanent railroad crossing. Specifically, the WTA argues that provisions of the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. 10101 et seq. (2006), preempted the remedies ordered by the district court in a journal entry filed on January 25, 2012. Because we find that federal preemption is applicable to some of the remedies ordered by the district court, we affirm in part, vacate in part, and remand with directions.

Facts

Wichita City Ordinance No. 5436—which was enacted in 1916—grants the WTA the right to construct, operate, and maintain railroad tracks along 25th Street in Wichita. Pursuant to the ordinance, the WTA continues to own and operate two sets of parallel railroad tracks that run within a 30-foot right-of-way located south of 25th Street. Burlington Northern & Santa Fe and Union Pacific use the tracks as an interchange to move rail traffic between their rail lines. In addition, they temporarily store railcars on the tracks to facilitate the interchange of rail traffic.

In 1996, FYG purchased approximately 27 acres of undeveloped land directly to the south of the WTA's railroad tracks. After the WTA began repairing its railroad tracks in September 2002, FYG claimed that the WTA was a trespasser. Thereafter, on November 6, 2002, the WTA initiated this action, seeking to enjoin FYG from interfering with its right to maintain the railroad tracks. In response, FYG filed a counterclaim requesting an easement to allow vehicles to cross the WTA's tracks in order to access its property from 25th Street.

The district court granted summary judgment in favor of the WTA on January 7, 2004, finding that FYG had no legal right to ingress and egress across the WTA's railroad right-of-way. The district court also found that the city ordinance gave the WTA the right to construct, operate, and maintain railroad tracks along 25th Street. On appeal, a panel of this court reversed the district court's ruling and remanded the case to the district court "to determine if an injunction to provide ingress and egress [was] appropriate." See Wichita Terminal Association v. F.Y.G. Investments, Inc., No. 92, 132, 2005 WL 824042, *4 (Kan. App. 2005) (unpublished opinion) (Wichita Terminal Association I).

On February 20, 2007, the district court held an evidentiary hearing on remand. After hearing the testimony of several witnesses, the district court announced its decision on the record. The district court found that 25th Street—although undeveloped—is a public street and that the city ordinance required the WTA to provide ingress and egress over its railroad tracks to FYG's real property. In addition, the district court announced that it was entering a mandatory injunction requiring the WTA to construct and install a permanent railroad crossing and, in the interim, to keep a temporary crossing open to provide access to FYG's land adjacent to the railroad tracks. Following the hearing, the district court filed a minute order and directed FYG's attorney to prepare a journal entry.

Because the parties could not agree on the terms of the journal entry, one was not filed until August 1, 2008. In the journal entry, ...


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