Railroad Legal Issues and Resources (2015)

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25 domestic laws and that the courts should respect the parties’ intent to the extent that they contract to extend COGSA to inland transportation.93 VI. CHANGE IN DRAINAGE 260 A. Introduction 260 Railroads are required by state statutes and case law to construct culverts and ditches that provide adequate drainage to ensure that water flows in its natural course and is not obstructed. As discussed in Section B, a Missouri statute is representative of state statutes on railroads’ obligations to divert water to prevent damage to the railroads’ neighbors. Sections C through E discuss whether applicable federal law requires railroads to facilitate water flow from the roadbed, whether the Federal Railroad Safety Act (FRSA) preempts claims under state law for water damage caused by a railroad’s negligence, and whether a change in topography resulting in changes in drainage modify a railroad’s duty to provide proper drainage. Section F discusses an article addressing surface water rules in Arkansas. Statutes 260 B. Duty of a Railroad to Construct and Maintain Ditches and Drains 260 Missouri law regulates a railroad’s obligation to provide outlets for water so that the water may follow its natural path and not damage adjacent property.94 C. Applicable Federal Law Requires Railroads to Facilitate Water 261 Flow from the Roadbed Federal law requires 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.”95 93 Matthew K. Bell, Forget What You Intended: Surprisingly Strict Liability and COGSA Versus Carmack, 37 TRANSP. L. J. 57, 71 (2010). 94 MO. REV. STAT. § 389.660 (2014). 95 49 C.F.R. § 213.33 (2014).

26 Cases 261 D. Whether the Federal Railroad Safety Act Preempts Claims 261 Under State Law for Water Damage Caused by Negligence 1. Decision by a Pennsylvania Commonwealth Court 261 In Miller v. SEPTA,96 in which the plaintiffs sued the Southeastern Pennsylvania Transportation Authority (SEPTA) for negligently causing water damage to a hotel, a Pennsylvania court held that the FRSA preempted a state claim for negligence because the Secretary of Transportation had promulgated a regulation that covered drainage issues. 2. Decision by the Supreme Court of Pennsylvania 263 On October 30, 2014, in Miller v. SEPTA,97 the Supreme Court of Pennsylvania reversed and remanded the decision of the Commonwealth Court. The court held “that the instant state law riparian rights claim is neither covered by the FRSA’s preemption provision, nor § 213.33 of the federal Track Safety Standards regulations.”98 E. Whether the Interstate Commerce Commission Termination Act of 264 1995 Preempts State Law Claims for Water Damage In Village of Big Lake v. BSNF Ry. Co.,99 the village brought an action against BSNF for raising the height of its track in and around the village, which caused water damage to property within the village. A Missouri appellate court had held that the village’s claims were preempted by the Interstate Commerce Commission Termination Act of 1995 (ICCTA), which “expressly provides that the [STB] has exclusive jurisdiction over the ‘construction’ of railroad tracks.”100 However, the Court of Appeals of Missouri reversed the grant of a summary judgment in favor of BNSF and a construction company and remanded “[b]ecause genuine issues of material fact [exist] as to which Respondents bear the burden of proof and persuasion.”101 96 65 A.3d 1006, 1007–1008 (Pa. Commw. Ct. 2013), reversed by, remanded, 2014 Pa. LEXIS 2866 (Pa., Oct. 30, 2014). 97 103 A.3d 1225 (Pa. 2014). 98 Id. at *1236. 99 382 S.W.3d 125 (Mo. App. 2012), remanded by Village of Big Lake v. BNSF Ry. Co., 2014 Mo. App. LEXIS 634 (Mo. Ct. App., June 3, 2014). 100 Id. at 129. 101 Village of Big Lake v. BNSF Ry. Co., 433 S.W.3d 460, 461 (Mo. Ct. App., June 3, 2014).