Siloam Springs, Arkansas, City of v. Kansas City Southern Railway Company
ORDER denying 10 Motion to Remand; granting 12 Motion to Dismiss for Lack of Jurisdiction. Case is dismissed without prejudice. Signed by Honorable Jimm Larry Hendren on September 10, 2012. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CITY OF SILOAM SPRINGS, ARKANSAS,
A Municipal Corporation
Civil No. 12-5140
KANSAS CITY SOUTHERN RAILWAY COMPANY
O R D E R
consideration Plaintiff’s Motion to Remand (document #10), and
defendant's Motion To Dismiss (document #12), and from said
motions, and the responses thereto, the Court finds and orders as
In this condemnation action, the City of Siloam Springs,
Arkansas ("City") seeks to exercise its power of eminent domain to
acquire a permanent trail easement over land running underneath a
railroad bridge owned by the Kansas City Southern Railway Company
The City originally filed this action in the Circuit
Court of Benton County, Arkansas on June 8, 2012.1
to this Court by KCSR on July 6, 2012.
It was removed
The City now seeks to
jurisdiction is lacking over this state law condemnation action.
This is the second condemnation action pertaining to the recreational trail
easement which is the subject of the instant action. The City’s previous action, City
of Siloam Springs v. Kansas City Southern Transport Co., by the Kansas City Southern
Railway Company, Civil No. 11-5233 (W.D. Ark. 2012), was dismissed for lack of subject
matter jurisdiction by this Court on February 14, 2012.
KCSR, however, argues that the matter is preempted by
federal law and therefore moves to dismiss for lack of subjectmatter jurisdiction, pursuant to F.R.C.P. 12(b)(1).
that jurisdiction to determine the issue lies with the Surface
Transportation Board ("STB") under 49 U.S.C. § 10501(b), which
grants the STB exclusive jurisdiction over "the construction,
acquisition, operation, abandonment, or discontinuance of spur,
industrial, team, switching, or side tracks, or facilities, even
if the tracks are located, or intended to be located, entirely in
The City responds that § 10501(b) is not as sweeping as
claimed by KCSR, in that state laws -- such as those providing for
eminent domain -- are only preempted where their application would
"prevent or unreasonably interfere with railroad operations,"
citing Maumee & W.R.R. Corp. and RMW Ventures, LLC - Petition for
Declaratory Order, 2004 WL 395835 (S.T.B., March 2, 2004).
The statute in question, § 10501(b)(1), provides that
transportation by rail carriers, and the remedies
provided in this part with respect to . . . facilities
of such carriers; and (2) the . . . operation . . . of
. . . facilities, even if the tracks are located, or
intended to be located, entirely in one State, is
exclusive. Except as otherwise provided in this part,
the remedies provided under this part with respect to
regulation of rail transportation are exclusive and
preempt the remedies provided under Federal or State
The STB has explained the reach of § 10501 preemption as
Section 10501(b) . . . shields railroad operations that
are subject to the Board's jurisdiction from state or
local laws or regulations that would unreasonably
interfere with or discriminate against rail operations.
. . . But state or local authorities may take action
when it only incidentally affects railroad property.
See, e.g., N.Y. Susquehanna & W. Ry. v. Jackson, 500
F.3d 238, 252-54 (34d Cir. 2007)(§ 10501(b) preempts
"all state laws that may reasonably be said to have the
effect of managing or governing rail transportation,
while permitting the continued application of laws
having a more remote or incidental effect on rail
transportation. . . .)
Allegheny Valley Railroad Company -- Petition For Declaratory
Order, 2011 WL 1546589 (S.T.B., April 21, 2011).
question of law," and "[t]he party asserting federal preemption
has the burden of persuasion."
Elam v. Kansas City Southern Ry.
Co., 635 F.3d 796, 802 (5th Cir. 2011) (holding that § 10501 only
completely preempts claims attempting to "manage or govern a
railroad's decisions in the economic realm").
In cases involving state laws of eminent domain, particularly
crossings, courts have held that § 10501(b) does not preempt such
laws unless the easement would "impede rail operations or pose
undue safety risks."
New Orleans & Gulf Coast Ry. Co. v. Barrois,
533 F.3d 321, 333 (5th Cir. 2008), citing cases, including City of
Lincoln v. Surface Transportation Board, 414 F.3d 858, 863 (8th
In light of the foregoing authorities, the Court believes
that preemption applies in this case if the easement sought by the
City "would unreasonably interfere with" KSCR rail operations, but
not required if it "only incidentally affects" KCSR railroad
In support of its Motion To Dismiss, KCSR offers the
Amended Affidavit of Allen Pepper2 ("Pepper") and the Declaration
Under Penalty of Perjury of Srikanth Honnur (“Honnur”).
Director of Public Safety for KCSR, he has considered the City's
proposal for a "recreational trail under a bridge on the KCSR
mainline in Siloam Springs," and specifically avers the following:
that the bridge is a 172' ballast deck timber bridge
built in 1918;
that approximately twenty trains cross it each day;
that the trains that cross the bridge travel between 25
to 40 miles per hour;
that trail users would be exposed to hazards associated
with rail transportation;
that although the use of corrugated roofing material may
provide some protection from the danger of small objects, the roof
would provide little protection from large, heavy objects; and,
The Amended Affidavit of Allen Pepper was substituted in place of the Affidavit
of Allen Pepper as Exhibit 1 to KCSR’s Motion to Dismiss following this Court’s text
only order granting KCSR’s Unopposed Motion to Substitute Amended Affidavit with Brief
Incorporated (document #20).
that constructing the proposed corrugated roof would
interfere with KCSR’s ability to operate the bridge, specifically
engineer and the KCSR Track and Bridge Construction Director,
that “at some point in the future, this bridge will be
replaced with a new bridge;”
that destruction of the trail and proposed corrugated
metal roofing will be required when the bridge is replaced or
improvements to its railway lines in the future;
that KCSR may need to reinforce and repair the bridge
prior to replacement through the installation of intermediate
support bents; and, the installation of intermediate support bents
would require removal of the proposed roofing structure;
that the construction of the trail and proposed roofing
structure could cause delays in repair response time; which could,
in turn, potentially cause a collapse in the bridge; and
that construction of the trail could interfere with
water flow of an adjacent waterway and the potential need of KCSR
to widen the channel of that waterway to increase the capacity of
The City presents the Affidavit testimony of Randy
Atkinson states, in pertinent part, that -- based on studies -underpass
recreational trail, are far safer than at-grade crossings for
pedestrians and bicyclists.
Based upon the submissions, it would appear to the Court
modifications to a railroad bridge -- which is unquestionably a
modifications -- and the potential implications those structural
modifications have on KCSR’s ability to inspect and maintain the
bridge -- constitute more than an “incidental effect” on the
operation of the railroad.
Further, the proposed trail easement would allow pedestrians
and bicyclists to cross under the track while trains are passing
Despite the proposed roofing structure, the Court
believes that arrangement would still present the risks that some
sort of debris -- from passing trains or from the bridge itself -might fall and strike the trail users.
Such risks expose not only
the trail users, but also the railroad.
The City argues that at-grade crossings are considered
more dangerous than underpass crossings which, of course, may well
However, the issue before the Court is whether this
proposed crossing will "impede rail operations or pose undue
safety risks" -— not whether this proposed form of crossing will
pose less of a safety risk than some other form.
In light of the foregoing, the Court concludes that the
case falls within the ambit of 49 U.S.C. § 10501(b) -- thus
preempting state law and placing exclusive jurisdiction of the
matter with the Surface Transportation Board per that statute. It
further concludes that, in these circumstances, the motion to
remand should be denied and this case should
be dismissed because
the Court lacks subject matter jurisdiction.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Remand
(document #10) is denied.
IT IS FURTHER ORDERED that defendant's Motion To Dismiss
(document #12) is granted, and this matter is dismissed without
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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