BNSF works to derail new state law
A rail operator is seeking to derail an Oklahoma law that requires railroads operating in the state to minimize blocking road-rail crossings for longer than 10 minutes without good reason.
BNSF Railway Co. filed a lawsuit Thursday in federal court in Oklahoma City to challenge the law.
The suit, which targets Oklahoma's elected corporation commissioners and two cities that have cited the operator for violations so far, asserts railroad operations are governed by federal agencies.
The action came as no surprise to an Oklahoman who has spent decades fighting for common-sense transportation solutions to enable all types to grow and prosper.
“Oklahoma taxpayers will get to pay to defend a state law that legislators knew was completely without
merit,” Tom Elmore, executive director of the North American Transportation Institute, said after reacting to the news with a hearty laugh.
“They knew it wasn't going anywhere, but they passed it anyway.”
Specifically, the suit targets the two police departments that cited BNSF for violating the law: Edmond and Davis. It targets the commission as well, given that the agency is tasked to enforce the statute.
The lawsuit does not name Oklahoma House Speaker Charles McCall, the law's author, any co- authors or Gov. Kevin Stitt, who signed the law, as defendants.
Attorneys representing BNSF argue the Surface Transportation Board of the United States oversees railroad operations under authority granted to it by the Interstate Commerce Commission Termination Act in 1995.
They also argue the Federal Rail Safety Act approved by Congress in 1970 gives the U. S. Secretary of Transportation broad powers to prescribe regulations and issue orders that cover every area of railroad safety.
The petition asserts “The Supremacy Clause of the United States Constitution provides that federal law `shall be the supreme Law of the Land … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' ”
They also point out that other similar ordinances approved in other states, challenged on the same grounds, have been voided by many decisions issued by federal judges.
Oklahoma's law, approved this year, requires railroads operating in the state to minimize obstructions for emergency vehicles where possible and to avoid blocking a track-road intersection with a stopped train for longer than 10 minutes without a valid reason.
Edmond police issued citations to BNSF twice in July that accused the operator of violating the law. Davis police also cited BNSF under the same state law.
The statute, which took effect July 1, doesn't prohibit blockages of longer than 10 minutes entirely. It allows an operator to block a road-rail intersection with a train for longer when the
train must be halted because of an accident, derailment, critical mechanical failure, a washout of track or bridge or other emergency condition or order.
It also grants a rail operator a one-time exception to block a road-rail intersection for up to 10 additional minutes if a crew can't complete a switching maneuver to subtract or add rail cars to a train's consist any more quickly.
Plus, it waives the time limit when an operator halts a train that blocks an intersection to allow passage of a second train that's momentarily expected, or, in cases when an operator separated a train's consist to open another, nearby road- rail intersection.
It authorizes local police, deputy sheriffs and highway patrol troopers to issue citations to train operators when lengthy intersection blockages occur.
And it requires contested citations to be heard by an administrative law judge at the commission, with a caveat a judge's finding could be appealed for a hearing before elected commissioners.
The maximum amount an operator could be fined for a conviction under the law is $1,000.
In February, Speaker McCall described the law as a measure “of last resort" to address reports he had gotten about lengthy road- rail intersection blockages from communities' administrative and public safety officials.
“We understand we need to co- exist,” he said, but added the issue is a concern across the state that had “just risen to an unbearable level. At the heart of it is a public safety concern for the people of Oklahoma.”
BNSF, which hasn't commented about the citations, is expected to appear at the commission on Aug. 28 to set a schedule for arguments on the citations, unless a federal judge intervenes.
Elmore, who lives in Moore, said legislators who are concerned about roadrail intersection blockages should have addressed the issue another way.
“They should actually have looked at the problem and established a standing fund and an urgent program to immediately start under-passing key roads,” he said. “That is something that actually would help.
“You can't bully the railroads, they are about to find out. It is like blaming your great-grandfather for all the troubles you have created in your life.”