BNSF Railway

218 Cal. App.4th 778; 2013 Cal. App. LEXIS 617 (August 5, 2013)

The Court of Appeal (Third District) reversed a Commission’s decision holding that the Commission had the authority to direct a railway company to employ lights and other warning signs located at a pedestrian railroad track crossing rather than, as the railroad desired, employing a horn mounted on the locomotive itself.  The court paid particular attention to recent legislation amending Section 7604 but treated it as “cosmetic”, arguing that it effectively left the prior regulatory scheme intact.  The Commission and the City of San Clemente, by contrast, argued that the legislation permitted the Commission to require trains to only use train-mounted horns in emergencies and to rely instead on warning devices located at the crossings.  The opinion analyzes the complex interplay between the federal regulations (49 C.F.R. § 222) and the state statutes, Sections 1202 and 7604.  Arguably, the Court failed to defer to the Commission with regard to the Commission’s construction of the statutes pursuant to Greyhound (Para. 71).  Indeed, the opinion is devoid of any discussion of deference even though the issue was extensively briefed by both the City and the Commission.  The Supreme Court denied the Commission’s Petition for Review on November 20, 2013.  The Commission has not fared well in the appellate courts in railroad matters (See Paragraphs 22, 25, 28, 40 and 61.)

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