c s x has this single railroad track the runs along the southern or the back of my client's shopping mall a berm with trees and shrubs is located between the two properties really straddles the property homes on the opposite side are way above and those homes demonstrate that when the railroad was originally installed probably one hundred years ago the railroad or its predecessor changed the grade of the property and changed the course of the water from north to south i'm sorry why did we stop talking i mean i understood the argument in the district court to be to the effect that this change in runoff and invasion of your client's property occurred because when high school took place then dallas was put on the track in a lot of heavy equipment was brought in there a few years ago some but something c s x they had resulted in the change in the runoff that so i'm a little puzzled by it and i'm wondering if you can explain i think i can we were quite frankly we were rather surprised when we filed the original action and we went to the first encounter which of sanchez and just sanchez's added to was wait this is mother nature this is mother nature and this is just water running from the higher level to the lower level we had a great deal of difficulty and probably were unsuccessful at least until oral argument convincing judge sanchez that the the railroad even to change your theory here your theory before the district court and i think that's what maybe that's what we're getting at that you were really assuming preemption or that the stand federal standard applied before the district court but now you're you're urging that doesn't that's not that's accurate your honor i did not do that we came in an initially and we sued to have the a railroad a bait a nuisance not a nuisance but the water coming onto our property we thought we played pennsylvania law that when you changed property wh change the grade of property you're responsible to make sure that water doesn't come one on our property but let's get down to the basic why is this not preempted under the federal law under forty  two one three three two one three point three three wood says each drainage or other water carrying facility under immediately adjacent road better be maintained kept pretty of obstruction to accommodate expected water flow for the area concerned does that not specifically this is this is this is very very similar in my view on the preemption to your stroke case and to another and to a number of other cases if you if you look at the picture and what and if you read the record as we coded in our reply brief c i s act said all that regulation applied to is keeping the water off of the trucks the tracks are over here i don't know how many feet ten twenty feet and then you have well it's a question of what adjacent means but if the idea is to keep things you know free of obstruction accommodate water flow  well is that all about what adjacent means well i'm not sure on it because here's here's where you say that i changed my theory i said that there was no preemption judge sanchez said the same thing that you're saying and then i said ok well then let's look at that regulation and it says that you're supposed to keep the that the water facilities are supposed to take care of i mean let me let me see can i have the exact why i wish each drainage or other water carrying facility under or immediately adjacent to the road bed shall be maintain and kept free of obstruction to accommodate expected water flow for the area concerned and this is this what they did not what they failed to do not according to them according to them all they had to do was to well if it according to the railroad all they had to do was keep the water off the tracks watch for the of road master who was their responsibility and liability for water flowing from this area it's this area it's the road bed it's that there are wage it to the regulations and i said ok if you say that the regulations preempt this area they subserve all of the regulations and they supplant and here's the important part is supplant the pennsylvania property law that says that one property owner can't throw water on another then you have to then our second position was ok then they violated their own regulations they but where's your plan to sit for a violation i think this is where the confusion is and has why is it are you saying that they violated the regulations are you saying that they're liable to your client in the exits and trespass i am saying in the first instance that they are and they are liable to my client in negligence and continuing trespass and then when the when the of defense of preemption which i do not think then if you're saying to me or if the railroad is saying this entire area is controlled by the regulation then this picture and all the evidence shows that they  two thirty point thirty three doesn't even relate to let alone coverage though seems to me to be inconsistent positions and an theoretically you could get to where you want to get frankly picking either of those i think but my question is are you are you foreclosed from taking the one you've taken in front of us because you didn't argue it to the floor below you argue to the court below that there was a clearly and a and that was that was the operative regulation covered i didn't i you argue both i argue the second that the if the regulations covered this then they violated the regulations and if they violated the regulations how do you have a right of action because that's negligence is preempted not not it's not if it's if if they were if the regulations preempt the common wall right and they then don't follow their regulations which is clear here they almost intentionally seeking damages you're welcome to it it's the word damages let me come back to where judge fisher was for one second what you have to understand why i can't say that because you wonder stan the structure and all you've written other opinions in this area the clarifying regulations widened plaintiff's rights you can't take the clarifying regulations like judge sanchez and say wait a minute you're more restricted under the clarifying regulations and you were under the common law before preemption in my view we were there's no preemption here and therefore we're entitled to whatever remedy now if you even take judge synch as his argument all due respect it doesn't make any sense so if there is and what happened here we gave up art really our claim for a couple of thousand dollars to fix the the stones where they come on our property wasn't worth trying spending three days trying out or having twenty or thirty thousand dollars worth of expert so i gave up that claim but what i said was we've got a continuing trespass here and that's a damage and under pennsylvania  case is a very good case ybor that explains this and then you've got the rushing case we've got the emerson case where there's an affirmative duty on railroads to clean the dish you're stro human pose an affirmative duty on the railroad preps but the cause of action here that's permissible is a cause of action or personal injury or property damage and you are not asking for property damage you are asking for an injunction for them to stop and basically remedy a condition that's not the same as an action for injury personal injury death or property damage and you're getting that from the clarifying regulation right and what the clarifying the preemption doctrine the preemption was in the nineteenth seven the act there was on behalf of defendant police e s x transportation inc in the court below plaintiff argued that their claims were not preempted not because forty nine c f r two thirteen point three three did not its essence told the federal courts that preemption does not attach if the railroad violated a federal regulation or a few other things like issue here is the regulation but of course that  fine what's wrong with the logic i don't think the clarifying then it was speaking to the scope of injunctions whatsoever if you look at the other aspects of the f r s air you will take that is his point to the clarifying them of two thousand and seven one of your sister courts held that the claim was preempted because the subject matter of that claim was covered by a regulation and further held that the mere fact the railroad had by late rushed and so congress comes in and says that's not what we meant when we enacted r s a we meant for railroads to comply with the regulations and if a railroad has not complied with the regulation then and there are damage and there is a cla for damages then the claim can proceed but based by specifying that it was only applies to damages it's simply a reflection of it's not a change in the law merely reflects the state of the law at the time that only the regulations eastwood seems pretty clear he should seems to say mean least that we're we're we're very cheery about saying there's and in fact we think the federal railroad safety act has an unusual saying so if the language of the statute itself which the supreme court holds never says hey by the way we're preempting all equitable remedy and it does an easter would says be careful about what you say about preemption what can you look to that takes the common law remedies including equitable relief off the table i would look for th clarifying and i would look to forty nine u s c section two zero one one sub sub two which provides that the secretary of transportation has exclusive authority to standard that is the federal railroad administration safety regulation and that is what has a preemptive force here and it is only according to the statute by its plain text only the f r a that may seek injun termination act the railroad took the position not your client different reality took the position that they could throw railroad ties in a ditch in courses and circuits and that's crazy you can't say that that's preempted or you could is not our problem so if it's preempted part isn't the logical end of your argument that if c s x wanted to you could run a covert on to the and the mall property and just run it straight there fact it would say that's what they tried to do before this stuff but why why isn't that something you're free to do if it's true that there's no remedy only that only the secretary of transportation can come unst particular instance in a particular satch it as far as whether we put a sewer line on to the malls property i'm not certain that there would necessarily be a private claim that would prevent us from regulation this area not private plaintiffs and it's current primary concern is with the safety of railroad operations as absolutely no doubt that ensuring proper drainage is absolutely essential aspect of maintaining tr true and you fail to meet us your argument is they would have an action they could come in for that throwing of toys and other debris which which simply doesn't have anything to do with the natural operation of arrows and you can dispose of your garbage wherever and so on our theory the claim in emerson's not printed under the court's decision there was in the claims not has the f r a come to this property and insisted that you do a better job not to my knowledge but i don't think there's anything in the record one where the other your are now they would argue at least in their briefs they argue straws we should follow straws and find that these state court actions aren't preempted you argue rooney right yes you know you say that rooney's more apical even though it's a district court t construes that this court held the regulation governing warning devices covered what it said warning devices and not other claims such as vegetation claims are thought of pointless and what we say here is that the a drainage regulations which you cited to this court things out what they mean they covered frankish and plaintiffs claims for rise from the drainage from the need and immediately adjacent to a track if you look at the cross section of the property at eight thirty six this court at least is arguing that the claim is not preempt because section two thirteen point three three day nor two thousand and one or three c entirely but they argue that section two thirteen point three three does not prohibit the discharge of stormwater onto their property and therefore does not cover the subject matter of their claim ok but that's a non sequitur the mere fact that the regulation does not prohibit the result of the conduct is not mean that the regulation not cover the subject of that product and so if you look at easter would there the f r a regulation governing the speed at which trains operate does not prohibit collisions with motor vehicles at railroad crossing but as reflected in the supreme court's decision in eastwood nevertheless it creates claims arising from such collisions well it's not really a very good analogy let me but it doesn't it doesn't speak at all about what you do with the water once you make sure it doesn't see black which is why we're  secretary and if we want to direct it onto their property we're free to do it and they can't say boo about it because the only person who can stop us is the secretary of transportation so taking huge you were asking what is it about language thirty three under or maybe jason what makes you think that means we can do whatever we want to walk in this particular circumstance an obvious response in this case today or in this case the property the railroad property is confined addition to tracks and all that you have lots of other outlying properties where water would be flowing to another property that would not be subject to two thirteen point three three because it's not so this is mr lasher position where it goes that given the letters we've still got on even today from you money's been spent on this as a practical sorts of claims go to the heart of railroad operations a we must be able to comply with the f r a safety regulations and we strive to do so in ensuring proper drainage wherever a crisis is necessary for that and  most importance to our national rail operations and that's why it's important for us to resist this claim and to insist on a profit for petition the preemption provision that forget liability you were supposed to maintain and keep free of obstruction to accommodate expected water flow will parent hears more water flow in the area and there's something wrong with the road bed the adjacent area whether it's the density or the perk or something that this is flowing off this property and i guess i'm concerned that the f r a and no one else will you know i mean who is just who is concerned about doing something about this cause and the alleged problem i don't accept the notion that there is clearly something wrong with a road bed we had an operation since one thousand nine hundred let's say for hundreds over a hundred years no problem we maintained it and i think september of two thousand and nine no problems there after then suddenly october two thousand and ten they say up we got flooding we don't know the what the source of the cause is as council says a slope downhill waterfall is gravity and isn't it by no means clear to me that there is anything that  actions it will chill any property owners ability to come here that's what this is all about there are so many really want to speak if you would mr pounder specific point that this is express ever heard bad that there is that there is some existing prohibition against any injunction that common law was apprecate if that's the question you're asking me think that's the position the they took is it not i've never heard it before you know what here's what was said the same exact thing that mr tobar say the regulations only say this in my brief is the quote from mr young in this court room in response to judge sanchez short not to mention two one three two one three three three is a drainage regulation a sensually what it says is railroads you've got to keep the water off the tracks that's that little narrow thing because it's dangerous to have water there because it will deteriorate the tracks it's exactly what you ask i'm just trying to answer to a pretty simple question maybe i misunderstood mr kopper but i understood him the say in response to my question look under the f r s a there is expressed preemption of any equitable remedy exclusively in the secretary of transportation resides the power to seek any kind of a job and that was the state along before the curve fine and so that's just the way it is now i hear you saying if that's their position you've never heard it before i've ever heard it and what does it you say what this emerson and rushing and what is stroh's it say it impose an affirmative obligation but here's the practical point they say that we can't have an equitable remedy so what do we have to do keep suing keep suing every time we'll go in will will patch it and then they'll get a rain and the water will come down and we've got to keep going back and keep going back when pennsylvania was cleared out of control they're basically saying you can't bring them in the court of course that's what they're saying that's absolutely right and just think about that just think about that when you were attorney general when you're sitting there and somebody says to you here's a state you know here i know there's a state law here that we're going to have it's going to take property rights away the legislature is going  trucks well but but you also have safety around because you have switchmen that are going to be there and it could be you know walking around those areas in ice or snow or something like that the water has to flow so