BY THE COURT
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.
Because federal preemption involves an interpretation of law,
appellate courts have an unlimited standard of review.
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.
Congress fails to expressly preempt state law, there is a
strong presumption that it did not intend to displace state
law. However, the presumption against preemption is not
triggered when the State regulates in an area where there has
been a history of significant federal presence.
istorically, federal regulation of railroads has been
extensive, pervasive, and comprehensive.
Interstate Commerce Commission Termination Act (ICCTA), 49
U.S.C. § 10101 et seq. (2016), created the Surface
Transportation Board to ensure the development and
continuation of a sound rail transportation system in the
United States. 49 U.S.C. § 10501(a)(1) (2016).
enacting the ICCTA, Congress granted the Surface
Transportation Board exclusive jurisdiction over the
construction, acquisition, operation, abandonment, or
discontinuance of railroad tracks and facilities.
Furthermore, Congress 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).
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. Even so, state and local
authorities may continue to exercise traditional police
powers to protect public health and safety so long as the
application of such laws or regulations have only a remote or
incidental effect on rail transportation.
K.S.A. 66-273 prohibits railroad companies and corporations
operating a railroad in Kansas from allowing trains to stand
upon any public roadway near any incorporated or
unincorporated city or town to exceed 10 minutes at any one
time without leaving an opening on the roadway of at least 30
feet in width.
Because K.S.A. 66-273 specifically targets railroad carriers
and has an effect on railroad operations that is more than
remote or incidental, it infringes upon the exclusive
jurisdiction of the Surface Transportation Board.
from Chase District Court; Douglas P. Jones, magistrate
Marianne M. Auld and Jody S. Sanders, of Kelly Hart &
Hallman LLP, of Fort Worth, Texas, and Noah K. Garcia, of
Knight Nicastro, LLC, of Kansas City, Missouri, for
Kristafer R. Ailslieger, deputy solicitor general, and Derek
Schmidt, attorney general, for appellee.
Bruns, P.J., McAnany, J., and Burgess, S.J.
Railway Company (BNSF) appeals its conviction for violating
K.S.A. 66-273. This statute prohibits a railroad company from
allowing its trains to stand upon a railroad crossing for
more than 10 minutes without leaving an opening at least 30
feet wide on the public roadway. Following a bench trial, the
district court found that a BNSF train blocked two crossings
in Chase County for approximately four hours. Because we find
that the Interstate Commerce Commission Termination Act, 49
U.S.C. § 10101 et seq. (2016), preempts K.S.A. 66-273,
we reverse BNSF's conviction as a matter of law.
operates a rail line through Chase County on which it
operates freight trains. Both BNSF and Union Pacific operate
trains on the track. Although BNSF does not have a rail yard
or terminal in Chase County, it does have a side track
adjacent to the main track near Bazaar. The side track is
used to change crews, to perform maintenance, to allow other
trains to pass, and for various other reasons.
are two grade crossings-located within several hundred feet
of each other -where the main line and side tracks intersect
with public roadways northeast of Bazaar. One is at the
intersection with Norton Creek Road and the other is at the
intersection with T Road. According to BNSF, it built the two
grade crossings so closely together to minimize inconvenience
for local residents whose property is only accessible by
crossing the railroad tracks. Yet, as BNSF acknowledges,
trains occasionally block both railroad crossings. This case
involves one of those occasions.
after 6 a.m. on the morning of December 19, 2016, the Chase
County Sheriff's Department received a call reporting a
stopped train blocking both of the railroad crossings.
Sheriff Richard Dorneker arrived at the scene around 8 a.m.
He spoke to a BNSF employee who he saw walking up and down
the tracks. Although the BNSF employee told Sheriff Dorneker
that he had to check the train, he evidently offered no
additional information regarding why the train was stopped.
assessing the situation, Sheriff Dorneker instructed someone
in his office to call BNSF in an attempt to clear the
railroad crossings. Although the Sheriff's office
apparently placed three phone calls to BNSF, the crossings
remained blocked until 9:54 a.m. As a result, Sheriff
Dorneker issued BNSF a citation-which listed Engine No. 7220
and Engine No. 8169-for blocking the railroad crossings for
four hours and six minutes in violation of K.S.A. 66-273.
to trial, BNSF moved to dismiss the citation. In the motion,
BNSF argued that the State had failed to come forward with
sufficient evidence for the case to proceed to trial. BNSF
also argued that federal law preempts the Kansas statute. The
district court heard the motion on March 14, 2017. On April
18, 2017, the district court denied the motion. In its
memorandum decision, the district court found that the State
had come forward with sufficient evidence to go to trial. In
addition, the district court ruled that federal law did not
preempt K.S.A. 66-273.
1, 2017, the district court held a bench trial. The State
offered the testimony of Sheriff Dorneker and several
residents affected by the blocked railroad crossings on the
morning of December 19, 2016. Several area residents
testified that they missed work that day because the
crossings were blocked. Likewise, because of the blocked
crossings, service technicians were unable to reach the house
of one resident who had no water and was having problems with
his heating ...