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FILED
2020 JUN 25 11:22 AM
KING COUNTY
Judge Averil Rothrock
SUPERIOR COURT CLERK
Friday, June 12, 2020 at 11:00 AM
E-FILED
With Oral Argument
CASE #: 19-2-01794-5 SEA

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SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR KING COUNTY

CITY OF SEATTLE, a Washington municipal
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Transportation;
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Plaintiff,
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v.

NO. 19-2-01794-5 SEA
ORDER GRANTING DEFENDANT’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT: RE PREEMPTION

12 BALLARD TERMINAL RAILROAD
COMPANY, L.L.C., a Washington limited
13 liability company;
Defendant.

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This matter came on before the Court on Defendant Ballard Terminal Railroad Company,

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L.L.C.’s (“BTRC”) Motion for Summary Judgment: Re Preemption, filed May 15, 2020. Plaintiff

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City of Seattle (“City”) opposed the motion. This Court considered the pleadings, records, and

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files herein, including:
1. Defendant’s Motion for Summary Judgment: Re Preemption (May 15, 2020);

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2. Declaration of Joshua C. Allen Brower in Support of Defendant’s Motion for Summary
Judgment: Re Preemption, with exhibits attached thereto (May 15, 2020);
3. City of Seattle’s Opposition to Defendant’s Motion for Summary Judgment: Re
Preemption (June 1, 2020);

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT: RE
PREEMPTION - 1

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4. Declaration of Tadas Kisielius in Support of City of Seattle’s Opposition to

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Defendant’s Motion for Summary Judgment: Re Preemption, with exhibits attached

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thereto (June 1, 2020); and

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5. Defendants’ Reply in Support of Motion for Summary Judgment (June 8, 2020).
The Court heard argument of counsel for the parties on June 12, 2020, and considered that
argument in conjunction with the Motion, evidence, and pleadings referenced above. The motion seeks
only partial summary judgment, as additional claims remain.

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DECISION
A.

Defendant BTRC seeks a ruling that enforcement of Section 4 of the Franchise as

interpreted by the Court is expressly preempted by the Interstate Commerce Act, as amended by the

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Interstate Commerce Commission Termination Act of 1995 (“ICCTA”) as a matter of law, i.e.

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categorical preemption. Plaintiff City argues that enforcement of Section 4 of the Franchise is not

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categorically preempted, and that the matter should proceed to trial to determine on an “as applied”
basis whether enforcement of the Franchise is preempted because enforcement would result in

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substantial interference with railroad operations. Neither party asserts that the Court should decide
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the “as applied” issue on summary judgment.
B.

The preemptive effect of the ICCTA is a question of law. Franks Inv. Co. v. Union

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Pac. R.R. Co., 593 F.3d 404, 407 (5th Cir.2010) (en banc). Because of the presumption against

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preemption, the party contending that preemption applies has the burden of persuasion. Elam v.

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Kansas City So. Ry. Co., 635 F.3d 796, 802 (5th Cir.2011). Yet, that presumption “applies with less

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force when Congress legislates in a field with ‘a history of significant federal presence’ ” such as
railroads. Id. at 804 (quoting United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d

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69 (2000)).
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C.

BTRC in its reply requested that the Court remand the preemption issue to the STB.

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This request, coming in reply, is made too late. The City objected, and its objection is sustained.

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Moreover, BTRC provides no authority for the request to remand. Additionally, the STB had the

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT: RE
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opportunity to reach the preemption issue in the first instance when this matter was before it, but, in

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its June 25, 2019 Decision, held its proceedings in abeyance and expressly contemplated that the

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State court might reach the preemption issue first. The Court has an obligation to resolve the issues

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before it, including preemption. No good cause or authority has been presented to persuade the

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Court to avoid resolving the preemption issue in these proceedings.
D.

The ICCTA establishes exclusive jurisdiction in the STB for regulation of

transportation by rail carrier, as follows:
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The jurisdiction of the Surface Transportation Board over-8
(1) transportation by rail carriers, and the remedies provided in this part with
respect to rates, classifications, rules (including car service, interchange, and other
operating rules), practices, routes, services, and facilities of such carriers; and

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(2) 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 one State,

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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 law.
49 U.S.C. § 10501(b). BTRC puts at issue Subsection (2), arguing that the City’s attempt to
force relocation of the tracks at issue pursuant to the Franchise constitutes an exercise of

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jurisdiction over “construction” and “operation” of “tracks” or “facilities” that is categorically

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preempted. The Court agrees for the reasons stated below.

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E.

First, the Court agrees with BTRC that the City cannot avoid categorical preemption

based on its argument that the Franchise is a voluntary agreement and citation to the line of federal
case law and STB decisions holding that preemption does not ordinarily apply to enforcement of

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voluntary agreements. See Township of Woodbridge, NJ v. Consolidated Rail Corporation, Inc., 256
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F.3d 718, 2000 WL 1771044, 2001 WL 283507 (STB clarified 2001). The Supreme Court of the

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State of Washington has held that franchises, though subject to interpretation like a contract, are

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laws and rejected the argument that franchises be treated as voluntary agreements in an ICCTA

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT: RE
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preemption analysis. City of Seattle v. Burlington Northern, 145 Wn.2d 661 (2002). See also City of

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Tacoma v. Bonney Lake, 173 Wn.2d 584, 589-90 (2012) (municipalities enter franchise agreements

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in their propriety capacity, so courts should interpret franchises like contracts; municipalities grant

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franchise agreements in their governmental capacity). Our Supreme Court has observed that

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franchises are a form of regulation, stating, “The agreement is nonetheless an ordinance—that is, a
law. Like any state law, a local ordinance is subject to Congressional preemption.” Id. at 673. In
Burlington Northern the terms of the franchise at issue held to be categorically preempted regulated

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switching, not construction and reconfiguration of existing rail. Thus, the result in Burlington
Northern does not necessarily control the outcome here.
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The Court focuses on application of the express language of the federal statute to the

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undisputed facts. The language of Congress is the best indication of its intent. Demarest v.

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Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599, 112 L.Ed.2d 608 (1991)(“When we find the terms of

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a statute unambiguous, judicial inquiry is complete except in rare and exceptional circumstances.”);
United States v. Gonzales, 520 U.S. 1, 6, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997)(“Given the

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straightforward statutory command, there is no reason to resort to legislative history.”). Here,

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“construction” and “operation” of tracks and facilities is expressly stated to be within the exclusive

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jurisdiction of the Board “even if the tracks are located, or intended to be located, entirely in one

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State.” 49 U.S.C. § 10501(b). This plainly includes within the acts subject to categorical

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preemption regulation of the physical construction of tracks or other rail facilities, including their

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design and configuration. The City’s enforcement of Section 4 of the Franchise to control and dictate

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the relocation and construction of tracks and facilities must yield to the STB’s exclusive jurisdiction.
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The City argues that the reference to construction in 49 U.S.C. § 10501(b)(2) should

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be limited to the type of construction subject to the licensing requirement of 49 U.S.C. § 10901. The
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Opposition 7-8. Court does not find the available authorities support the City’ interpretation.

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Moreover, that is not what the statute says.

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT: RE
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H.

The Court recognizes that the ICCTA does not categorically preempt all exercise of

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local police power that incidentally touches tracks. “Congress narrowly tailored the ICCTA pre-

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emption (sic) provision to displace only ‘regulation,’ i.e., those state laws that may reasonably be

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said to have the effect of ‘managing’ or ‘governing’ rail transportation, Black's Law Dictionary 1286

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(6th ed.1990), while permitting the continued application of laws having a more remote or incidental
effect on rail transportation.” Florida East Coast Railway Co. v. City of West Palm Beach, 266 F.3d
1324, 1331 (11th Cir.2001). For example, “[c]rossing disputes, despite the fact that they touch the

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tracks in some literal sense, thus do not fall into the category of ‘categorically preempted’… state

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actions.” New Orleans & Gulf Coast Ry. Co. v. Varrois, 533 F.3d 321, 333 (5th Cir. 321).

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“[R]outine, non-conflicting uses, such as non-exclusive easements for at-grade road crossings, wire

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crossings, sewer crossings, etc., are not preempted so long as they would not impede rail operations

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or pose undue safety risks.” Id. See also CSX Transp., Inc., 2005 WL 1024490, at *6 (approving the

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proposition that “a state's traditional authority over the safety of roads and bridges at grade-separated
rail/highway crossings pursuant to other statutory schemes is not preempted by section 10501(b) so

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long as no unreasonable burden is imposed on a railroad”); City of Lincoln v. Surface Transp. Bd.,

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414 F.3d 858, 863 (8th Cir.2005) (STB adopting the position that “it is well established that

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nonconflicting, nonexclusive easements across railroad property are not preempted if they do not

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hinder rail operations or pose safety risks.”); Adrian & Blissfield R. Co. v. Village of Blissfield, 550

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F.3d 533, 541-42 (6th Cir. 2008) (installation of pedestrian crossings and adjacent pedestrian

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sidewalks is subject to as-applied-preemption analysis). Thus, if the terms of the Franchise at issue

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acted more remotely upon the tracks such that they could be considered to only incidentally regulate
the construction and configuration of the tracks, the Court likely would reach a different conclusion.

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Here, however, enforcement of Section 4 cannot be characterized as having a remote

or incidental effect on rail transportation. By enforcing Section 4, the City would directly control

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and enforce the precise location and configuration of the tracks. The City seeks to enforce Section 4

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to direct the construction of BTRC’s rail line for over one-half mile. The reconfiguration is a

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT: RE
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significant change. The City is attempting to manage an area reserved to the STB, i.e., the

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configuration and construction of tracks and rail facilities. Multiple authorities convince the Court

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that this type of regulation is categorically prohibited. See Franks Inv. Co. LLC v. Union Pacific R.

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Co., 593 F.3D 404, 406 (5T H Cir 2010) (Noting the Eleventh Circuit’s holding that “Congress

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narrowly tailored the ICCTA pre-emption provision to displace only ‘regulation,’ i.e., those state
laws that may reasonably be said to have the effect of ‘manag[ing]’ or ‘govern[ing]’ rail
transportation, ... while permitting the continued application of laws having a more remote or

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incidental effect on rail transportation.”); Fla. E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d

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1324, 1331 (11th Cir.2001) (“We find this interpretation of the ICCTA to be persuasive…. For a

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state court action to be expressly preempted under the ICCTA, it must seek to regulate the operations

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of rail transportation.”); Davis v. Davis, 170 F.3d 475, 481 (5th Cir.1999) (en banc) (The

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presumption against preemption is applicable to “areas of law traditionally reserved to the states, like

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police powers and property law ....”); Texas Cent. Bus. Lines Corp. v. City of Midlothian, 669 F.3d
525, 533 (5th Cir. 2012) (“If the Board directly regulates the activity, as it does the construction of

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rail lines, state and local regulation is prohibited. New Orleans & Gulf Coast Ry. Co. v. Barrois, 533
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F.3d 321, 332 (5th Cir.2008). Thus, the ordinances that would apply to the slope or other features of

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the embankments for the railroad tracks themselves are expressly preempted ….”); Friberg v.

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Kansas City Southern Railway Co., 267 F.3d 439, 443 (5th Cir. 2001) (“The language of the statute

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could not be more precise, and it is beyond peradventure that regulation of KCS train operations, as

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well as the construction and operation of the KCS side tracks, is under the exclusive jurisdiction of

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the STB unless some other provision in the ICCTA provides otherwise.”). The City’s attempted
regulation through Section 4 of the Franchise goes beyond the traditional realm of municipal

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regulation outlined in the examples in Paragraph H, into direct regulation of rail reconfiguration and
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construction that is reserved to the STB.
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The Court concludes that Congress intended categorical preemption of local

government acts such as the forced relocation and reconstruction of one-half mile of track according

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT: RE
PREEMPTION - 6

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to a municipal design, which would operate directly, not incidentally, to regulate construction and
operation of tracks and facilities.

BTRC has met its burden to establish categorical preemption.

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NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that

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Defendant’s Motion for Summary Judgment: Re Preemption is GRANTED. Additional claims remain

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for adjudication.
DATED this

day of

, 2020.
Signed electronically/see attached
Judge Averil Rothrock

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT: RE
PREEMPTION - 7

 King County Superior Court
Judicial Electronic Signature Page
Case Number:
Case Title:

CITY OF SEATTLE vs BALLARD TERMINAL RAILROAD CO

Document Title:

ORDER RE GRANTING PMSJ RE PREEMPTION

Signed by:
Date:

Averil Rothrock
6/25/2020 11:22:18 AM

19-2-01794-5

Judge/Commissioner: Averil Rothrock

This document is signed in accordance with the provisions in GR 30.
Certificate Hash:
9F855AA0761CA7624EF2BC1ECCD5D60CB03F8EB5
Certificate effective date: 11/5/2018 5:31:37 PM
Certificate expiry date: 11/5/2023 5:31:37 PM
Certificate Issued by:
C=US, E=kcscefiling@kingcounty.gov, OU=KCDJA,
O=KCDJA, CN="Averil Rothrock:
njR2SwvS5hGglSP3AFk6yQ=="

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