Railroad Legal Issues and Resources (2015)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

37 D. Competitive Access for Railroads 306 Statutes 306 1. Use of Terminal Facilities and Reciprocal Switching Agreements 306 The STB “may require terminal facilities…owned by a rail carrier providing transportation…to be used by another rail carrier if the Board finds that use to be practicable and in the public interest without substantially impairing the ability of the rail carrier owning the facilities or entitled to use the facilities to handle its own business.”145 Proceeding 307 2. Proposal to the STB Requesting a Modification of the Mandatory 307 Competitive Switching Standards In 2011, when the National Industrial Transportation League (NITL) petitioned STB to modify its standards for mandatory competitive switching, the Association of American Railroads, representing Class I railroads, opposed the NITL proposal and argued that no changes were needed.146 XI. CONSTITUTIONAL LAW AND RAILROADS 310 A. Introduction 310 Although the primary basis on which a railroad challenges a state law is that federal law preempts the state law, state laws regulating railroads also may be challenged for being unconstitutional under the Fourteenth Amendment to the United States Constitution. Sections B and C discuss federal constitutional provisions, state statutes, and cases in which railroads have challenged certain state statutes on constitutional grounds. Section D discusses a case in which the plaintiffs alleged that a transit authority violated their Fourth Amendment rights. 145 49 U.S.C. § 11102(a) (2014). 146 Petition, Docket No. EP 711, 42264, 2012 STB Lexis 273, at *2.

38 B. The United States Constitution 310 Railroad companies have challenged some state laws applicable to railroads on the basis that they violate the Commerce Clause under Article I of the U.S. Constitution,147 the Constitution’s Contracts Clause,148 or the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution.149 Statutes 311 C. State Statutes Requiring Full Crews 311 An example of a full crew law is a Wisconsin statute requiring a train operator in Wisconsin to have a crew consisting of at least two members, one of whom has to be a certified railroad locomotive engineer.150 Cases 312 1. State Statute Requiring a Full Crew on Trains Does Not Violate the 312 Due Process Clause or the Equal Protection Clause Although in 1968 in Brotherhood of Locomotive Firemen and Enginemen v. Chicago, R. I. & P. R. Co.,151 the U.S. Supreme Court held that the Arkansas full crew statutes did not violate the Equal Protection Clause, in 1999 the Seventh Circuit ruled that federal law preempted some of the provisions of the aforesaid Wisconsin statutes.152 2. State Statutes Requiring Fencing Do Not Violate the Due Process or 315 Equal Protection Clauses In Berens v. Chicago M. S. P. & P. R. Co.153 the Supreme Court of South Dakota held that the statutory obligation of railroads to construct fences to protect livestock was not a denial of equal protection even though motor carriers were not subject to the same requirement. 147 U.S. CONST. art. I, § 8, cl. 3. 148 U.S. CONST. art. I, § 10, cl. 1. 149 U.S. CONST. amend. 14, § 1. 150 WIS. STAT. § 192.25(2) (2014). 151 393 U.S. 129, 143, 89 S. Ct. 323, 330, 21 L. Ed. 2d 289, 299 (1968). 152 Burlington N. & Santa Fe Ry. Co. v. Doyle, 186 F.3d 790, 804–05 (7th Cir. 1999). 153 80 S.D. 168, 175, 176, 120 N.W.2d 565, 570, 571 (1963).