Argued: May 17, 2018
from the Allen Superior Court, Nos. 02D04-1505-IF-3082,
-3084, -3251, -3255, -3263, -3362, -1506-IF-6383,
-1508-IF-9742, -1512-IF-15577; 02D05-1503-IF-2039,
-1505-IF-3070, -3248, -3264, -3312; 02D06-1504-IF-2988,
-1505-IF-3071, -3183, -3246, -3262, -3363, -1506-IF-6379,
-1508-IF-9744, -1511-IF-13718 The Honorable Wendy W. Davis,
Judge The Honorable Frances C. Gull, Judge The Honorable John
F. Surbeck, Jr., Judge The Honorable David M. Zent,
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEYS FOR APPELLANT Curtis T. Hill, Jr. Attorney General
of Indiana Thomas M. Fisher Solicitor General Andrew A. Kobe
Larry D. Allen Deputy Attorneys General Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Raymond A. Atkins Hanna M. Chouest
Sidley Austin LLP Washington, DC Bryan H. Babb Bradley M.
Dick Bose McKinney & Evans LLP Indianapolis, Indiana John
C. Duffey Heather L. Emenhiser Stuart & Branigin LLP
ATTORNEYS FOR AMICUS CURIAE THE ASSOCIATION OF AMERICAN
RAILROADS Harold Abrahamson Jonathan E. Halm Abrahamson, Reed
& Bilse Munster, Indiana
ATTORNEYS FOR AMICI CURIAE FRANCIS P. MULVEY AND CHARLES D.
NOTTINGHAM Stephen J. Peters David I. Rubin Plunkett Cooney,
P.C. Indianapolis, Indiana
ATTORNEYS FOR AMICI CURIAE INDIANA RAIL ROAD COMPANY ET AL.
Karl L. Mulvaney Margaret M. Christensen Nana Quay-Smith
Bingham Greenebaum Doll LLP Indianapolis, Indiana
Crossroads of America-is a railroad capital. Statewide, dozens
of railroad companies run trains on more than four thousand
miles of track. Roads intersect those tracks, creating 5, 693
public railroad- highway grade crossings. That's one for
every seventeen public-roadway miles-the highest
concentration in the country.
public travel, the State bars railroads from blocking those
crossings for more than ten minutes, except in situations
outside the railroads' control. Violations carry minimum
$200 fines. After 23 citations, Norfolk Southern challenged
the State's regulation as preempted by federal law.
issue of first impression in Indiana raises two questions.
Does the standard presumption against preemption apply in the
railroad-crossing context? And to what extent has Congress
kept the tracks clear from state regulation of rail
that while the longstanding presumption against preemption
applies here, Indiana's blocked-crossing statute is a
remedy that directly regulates rail transportation and is
thus expressly preempted by the Interstate Commerce
Commission Termination Act.
and Procedural History
blocked-crossing statute bars railroads from blocking
railroad-highway grade crossings for more than ten minutes,
except in circumstances outside the railroads' control.
Ind. Code § 8-6-7.5-1 (2018). Violations are Class C
infractions and carry a minimum $200 fine. I.C. §
December 2014 and December 2015, Norfolk Southern collected
23 blocked-crossing citations for violations near its Allen
County trainyard. Norfolk Southern moved for summary judgment
on the citations, arguing that the Interstate Commerce
Commission Termination Act ("ICCTA") and the
Federal Railroad Safety Act ("FRSA") expressly
preempt Indiana's blocked-crossing statute. It also
designated evidence- undisputed by the State-that it faced a
heavy compliance burden at grade crossings near the
on that evidence, the trial court found that train-switching
maneuvers, track congestion, and mechanical defects can all
cause traffic blockages lasting more than ten minutes. It
also found that, to shorten blockages, Norfolk Southern would
have to run trains faster, run shorter trains, or
"cut" trains into segments-an onerous process that
requires more than ten minutes of reassembly and brake tests.
The court then granted summary judgment for Norfolk Southern
on all 23 citations, finding that both the ICCTA and the FRSA
preempt the blocked-crossing statute.
State appealed, arguing that neither federal act preempts
Indiana's blocked-crossing statute, especially given the
presumption against preemption. The Court of Appeals agreed,
reversing the trial court because neither the ICCTA nor the
FRSA explicitly list blocked-crossing statutes as preempted.
State v. Norfolk S. Ry., 84 N.E.3d 1230, 1236, 1238
Southern petitioned to transfer, which we granted, vacating
the Court of Appeals opinion. Ind. Appellate Rule 58(A).
here turns on whether federal law expressly preempts
Indiana's blocked-crossing statute. See Kennedy Tank
& Mfg. Co. v. Emmert Indus. Corp., 67 N.E.3d 1025,
1028 (Ind. 2017). We review that issue of law, and the trial
court's grant of summary judgment, de novo. Id.;
Young v. Hood's Gardens, Inc., 24 N.E.3d 421,
423 (Ind. 2015).
can preempt state law expressly, with explicit preemptive
text, or impliedly, "under the twin doctrines of field
and conflict preemption." KS&E Sports v.
Runnels, 72 N.E.3d 892, 905 (Ind. 2017); see also
Kennedy Tank, 67 N.E.3d at 1028. Field preemption exists
when Congress imposes "exclusive federal regulation of
the area." Kennedy Tank, 67 N.E.3d at 1028
(quoting Basileh v. Alghusain, 912 N.E.2d 814, 818
(Ind. 2009)). And conflict preemption exists when
compliance with both state and federal laws is
"physically impossible" or when a state law does
"major damage" to Congress's purpose.
Id. at 1029.
Southern argues only that Indiana's blocked-crossing
statute is expressly preempted. The statute's current
It shall be unlawful for a railroad corporation to permit any
train, railroad car or engine to obstruct public travel at a
railroad-highway grade crossing for a period in excess of ten
(10) minutes, except where such train, railroad car or engine
cannot be moved by reason of circumstances over which the
railroad corporation has no control.
I.C. § 8-6-7.5-1. State statutes like this one are
ordinarily covered by a presumption against preemption,
see Kennedy Tank, 67 N.E.3d at 1028, but Norfolk