*

The Honorable William W Schwarzer, United States District Judge for the Northern District of

California, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0449p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ADRIAN & BLISSFIELD RAILROAD COMPANY,

 Plaintiff-Appellee,

v.

VILLAGE OF BLISSFIELD,

 Defendant-Appellant.

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No. 07-1664

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 06-10137—Robert H. Cleland, District Judge.

Argued: April 23, 2008

Decided and Filed: December 18, 2008 

Before: MOORE and CLAY, Circuit Judges; SCHWARZER, District Judge.*

_________________

COUNSEL

ARGUED: Michael M. Wachsberg, PEDERSEN, KEENAN, KING, WACHSBERG

& ANDRZEJAK, Commerce Township, Michigan, for Appellant. Charles E. Kovsky,

CHARLES E. KOVSKY ASSOC., Livonia, Michigan, for Appellee. ON BRIEF:

Michael M. Wachsberg, PEDERSEN, KEENAN, KING, WACHSBERG &

ANDRZEJAK, Commerce Township, Michigan, for Appellant. Charles E. Kovsky,

CHARLES E. KOVSKY ASSOC., Livonia, Michigan, David E. Sims, FINKEL,

WHITEFIELD, SELIK, Farmington Hills, Michigan, for Appellee.

1
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 2

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. The Village of Blissfield (“the

Village”) appeals the judgment of the district court granting declaratory relief to Adrian

& Blissfield Railroad Company (“the Railroad”). After a bench trial, the district court

held that the Interstate Commerce Commission Termination Act (“Termination Act” or

“ICCTA”) of 1995, 49 U.S.C. §§ 10101-16106, preempted a Michigan statute requiring

the Railroad to pay for pedestrian crossings installed by the Village across the Railroad’s

tracks and sidewalks near the Railroad’s property. For the following reasons, we

REVERSE the judgment of the district court and REMAND for further proceedings

consistent with this opinion.

I. BACKGROUND

Adrian & Blissfield Railroad Company is a short-line railroad based in Lenawee

County, Michigan. The Railroad owns approximately 2.5 miles of track that run through

the Village, and, although the Railroad does “not cross state lines[,] . . . the traffic that

originates or terminates on [the] railroad crosses state lines.” J.A. at 110 (Dobronski

Test. at 17:12-14). The Railroad also has a small depot in the Village, located on US

223.

The Village Administrator, James Wonacott, testified that in 2003 and 2004 the

Village implemented a sidewalk-construction program pursuant to Mich. Comp. Laws

§ 462.309(6). The 2003 project derived from the Village’s concern that “without the

benefit of a sidewalk or dedicated pedestrian way, [pedestrians] would have to cross

[US] 223 at a street intersection and a rail grade crossing and a drainage ditch.” J.A. at

174 (Wonacott Test. at 156:16-18). Apparently, owing to the previous Railroad

president’s failure to transfer records, the Railroad’s president, Mark Dobronski, did not

become aware of the correspondence from the Village regarding the sidewalk project

until he received a letter from the Village Attorney, Frank Riley, in August 2003. The
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 3

letter stated that, if the Railroad failed to complete the sidewalk, the Village would

complete the construction and bill the Railroad. Dobronski testified that he responded

with a letter stating that he thought the Federal Railway Safety Act (“FRSA”) preempted

the Village’s actions.

Dobronski met with town officials in mid-September. After talking with the

engineer for the project, Dobronski became concerned “because he didn’t seem to know

much of anything about what the railroad standards or the specifications were.” J.A. at

123 (Dobronski Test. at 34:8-10). Despite these discussions, the Village installed the

sidewalk without the Railroad’s consent “between November and December 2003.” J.A.

at 79 (Mem. Op. at 4). “The sidewalk constructed along US 223 is within the right-ofway of the Michigan Department of Transportation (“MDOT”) and abuts real property

owned by [the Railroad] on which” the train depot is situated. J.A. at 79 (Mem. Op. at

4). Additionally, “[a] portion of the constructed sidewalks near where [the Railroad’s]

tracks cross US 223 several hundred feet east of the depot is outside the MDOT right-ofway and is on [the Railroad’s] property.” Id.

The Village’s 2004 sidewalk project involved installing a new walkway across

the Railroad’s tracks and repairing two existing walkways. On August 13, 2004, the

Village sent a letter to the Railroad stating that, because the Railroad had not responded,

the Village would once again contract out the sidewalk work and bill the Railroad unless

the Railroad completed the work by September 17, 2004. As in 2003, when the Railroad

did not proceed with construction, the Village did. On September 20, 2004, Dobronski

was alerted that one of the Railroad’s engineers had to conduct an emergency stop

because a gravel truck used in the construction was parked across the tracks. Dobronski

immediately visited the area and observed construction taking place. Dobronski testified

that he was “in utter disbelief seeing a bulldozer going down bumping into my rail,

chopping up ties, doing damage to the railroad infrastructure.” J.A. at 137 (Dobronski

Test. at 55:7-9). After this incident, Dobronski sent a “cease and desist” letter to the

Village. J.A. at 80 (Mem. Op. at 5). In December 2004, the Village completed work on

the walkways across the tracks.
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 4

The district court found that the sidewalks constructed by the Village “have not

benefitted [the Railroad] in any material respect.” J.A. at 82 (Mem. Op. at 7). In fact,

the district court found that the sidewalk construction was “detrimental” to the Railroad

because it “potentially increas[ed] its premises liability, and thereby has affected

negatively the value of [the Railroad’s] operations.” J.A. at 83 (Mem. Op. at 8). There

currently is a lien against the Railroad’s property as a result of its failure to pay the

assessments for the construction. At the time of the trial in November 2006, the district

court found that the lien amount exceeded $22,000. The district court found that the

sidewalk construction constituted a “financial burden on [the Railroad] and divert[ed]

money which could be spent on other matters,” particularly given that the Railroad had

lost money since 2002. J.A. at 83 (Mem. Op. at 8). Finally, the district court found that

the Railroad did not pay property taxes to the Village for property that it owns within

Village limits.

On January 10, 2006, the Railroad filed a complaint in the United States District

Court for the Eastern District of Michigan seeking declaratory relief. The Railroad

requested a declaratory judgment that the Village

may not impose its rules and regulations against [the Railroad] for safety

matters occurring on or about [the Railroad’s] property and right of way,

in particular, requiring [the Railroad] to construct roadways, grade level

crossings; and assessing against [the Railroad] and its property a fee for

construction of walkways along and upon the [the Railroad’s] property

and right of way.

J.A. at 9 (Complaint). The Railroad also sought a declaratory judgment “that the lien

filed by [the Village] against [the Railroad’s] property for construction of walkways

[was] invalid.” J.A. at 9 (Complaint). The Railroad claimed money damages incurred

during the Village’s construction, but this claim was dismissed without prejudice on

April 27, 2006, pursuant to the parties’ stipulation.

The district court denied the Railroad’s motion for summary judgment on

October 25, 2006. At that time, the district court noted that “although the preemptive

effect of the ICCTA appears to have evolved into Plaintiff’s primary argument, both

parties . . . focused their briefing [for the motion for summary judgment] more on the
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 5

1

The district court held that the Federal Railroad Safety Act of 1970 (“FRSA”), Pub. L. 91-458,

84 Stat. 971, does not preempt the Michigan statute at issue. Although the Railroad filed a cross-appeal

challenging this holding, we granted the Railroad’s motion voluntarily to dismiss its cross appeal. We

therefore do not address FRSA preemption.

We do note, however, that the FRSA and the Termination Act are not in conflict. “[T]he

agencies’ complementary exercise of their statutory authority accurately reflects Congress’s intent for the

[Termination Act] and FRSA to be construed in pari materia.” Tyrrell v. Norfolk S. Ry. Co., 248 F.3d 517,

523 (6th Cir. 2001). “Congress vested the FRA with primary authority over national rail safety policy and

assigned the [Surface Transportation Board] the duty to encourage ‘safe and suitable working conditions’

for railway employees through its assessment of individual railway proposals subject to its authority.” Id. A statute or regulation that is not preempted by the FRSA may be preempted by the Termination Act, and

vice versa. Id.

FRSA than on the ICCTA,” and the district court requested additional briefing on the

ICCTA prior to trial. J.A. at 40 (Op. & Order Den. Pl.’s Mot. for Summ. J. at 16 n.14).

The district court held a bench trial on November 27, 2006, and, on April 30, 2007, the

district court issued a written opinion entering judgment in favor of the Railroad. The

Village filed a timely appeal. The Railroad cross-appealed, but later voluntarily

withdrew its cross-appeal.

II. ANALYSIS

We must decide whether the district court erred in finding that the Termination

Act, also known as the ICCTA, preempts Mich. Comp. Laws § 462.309, which requires

the Railroad to pay for the installation and upkeep of sidewalks that abut and cross

Railroad property.1

A. Jurisdiction and Standard of Review

The district court’s subject-matter jurisdiction in this case is based on the federalquestion statute, 28 U.S.C. § 1331. We have appellate jurisdiction over the final

decision in the case pursuant to 28 U.S.C. § 1291.

We review de novo district-court determinations of federal preemption. Nye v.

CSX Transp. Inc., 437 F.3d 556, 560 (6th Cir. 2006). “In considering a district court’s

decision following a bench trial, we review for clear error the district court’s findings

of fact.” Anderson v. Int’l Union, United Plant Guard Workers of Am., 370 F.3d 542,

550 (6th Cir. 2004) (internal quotation marks omitted). “[T]he findings are not clearly

erroneous unless the reviewing court, on the entire evidence, is left with a definite and
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 6

2

Because the Village does not argue on appeal that the district court’s factual findings were

clearly erroneous, we adopt the district court’s factual findings for purposes of our analysis. J.A. Jones

Constr. Co., 438 F.2d at 5.

firm conviction that a mistake was committed; and the burden is upon appellant to show

such a mistake.” J.A. Jones Constr. Co. v. Englert Eng’g Co., 438 F.2d 3, 5 (6th Cir.

1971) (internal quotation marks omitted).2

B. Termination-Act Preemption

The district court held that the Termination Act preempted the Michigan statute

requiring the Railroad to pay for both pedestrian crossings installed across the Railroad’s

tracks and sidewalks near and on the Railroad’s property. The district court analyzed

the preemption provisions of the Termination Act and determined that “the construction

or repair of all of the sidewalks in this case constitutes construction of ‘facilities’ under

49 U.S.C. § 10501(2), and thus falls within the exclusive jurisdiction of the STB.” J.A.

at 96 (Mem. Op. at 21). It held that the “ICCTA preempts not only an attempt to require

a railroad to construct facilities, but also an attempt to require a railroad to pay for that

construction.” Id. In addition, the district court held that the statute imposed “an

unbudgeted and undue burden on [the Railroad], thus diverting funds from other railroad

expenses or operations, particularly from [the Railroad’s] maintenance fund.” J.A. at 97

(Mem. Op. at 22) (footnote omitted).

The Village argues that it acted under its police power to provide walkways

across the railroad tracks for pedestrian safety pursuant to Michigan statutes, Mich.

Comp. Laws §§ 462.131 and 462.309, that do not “attempt to regulate rail

transportation” on their face. Appellant Br. at 14-15. The Village further argues that it

would be too broad a reading of the Termination Act’s preemption provision to hold that

any tangential economic effect is preempted even if not an attempt to regulate the

railroad. The Railroad, on the other hand, argues that we have adopted a “broad reading

of Congress’ preemption intent” in the Termination Act and that preemption especially

applies when there is an economic impact on the railroad. Appellee Br. at 29 (quoting

R.R. Ventures, Inc. v. Surface Transp. Bd., 229 F.3d 523, 562 (6th Cir. 2002) (quoting
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 7

3

Specifically, the STB has exclusive jurisdiction over “(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

(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.” § 10501(b).

City of Auburn v. United States, 154 F.3d 1025, 1030 (9th Cir. 1998))). Regardless of

the Village’s intent, the Railroad argues that the impact of the Village’s actions was to

regulate rail transportation because of the economic burden imposed upon the Railroad.

The Michigan Department of Transportation has “regulatory and police power

over railroad companies in [Michigan] insofar as such power has not been preempted by

federal law or regulation.” Mich. Comp. Laws § 462.131(1). Under this regulatory

scheme, Michigan law requires that

[a] railroad owning tracks across a public street or highway at grade shall

at its sole cost and expense construct and thereafter maintain, renew, and

repair all railroad roadbed, track, and railroad culverts within the

confines of the street or highway, and the streets or sidewalks lying

between the rails and for a distance outside the rails of 1 foot beyond the

end of the ties.

Mich. Comp. Laws § 462.309(1). Michigan instructs local units of government that “[i]n

cases of sidewalk repair or construction, a railroad shall first be given the right to

construct in the same manner as that right is given to individuals.” Mich. Comp. Laws

§ 462.309(6). If the railroad fails to repair or construct a sidewalk, “the local unit of

government may cause the sidewalk to be constructed at the expense of the railroad, with

the cost to be collected in the usual manner as provided in the law governing that local

unit of government.” Id.

The Termination Act established the Surface Transportation Board (“STB”), 49

U.S.C. § 701, and gave the STB exclusive jurisdiction over certain aspects of railroad

transportation, 49 U.S.C. § 10501(b).3

 The Termination Act further states that “[e]xcept

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
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 8

4

The Village argues that if the Railroad believed that this case fell within the jurisdiction of the

STB and ICCTA preemption applied, then the Railroad should have submitted the issue to the STB rather

than filing a claim in federal court. Because the Village did not raise this argument in the district court,

we will not consider this issue. See B & H Med., L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 268 (6th Cir.

2008) (noting that we will consider issues not raised below only in exceptional cases). We observe,

however, that the Village appears to be conflating the issue of the exclusive jurisdiction of the STB with

the issue of preemption of state law by the Termination Act. Moreover, courts have held that a party need

not submit a preemption question directly to the STB prior to filing suit in federal court. See, e.g., N.Y.

Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252-53 (3d Cir. 2007).

5

Although the Fifth Circuit in Barrois was deciding a question of complete preemption for

purposes of federal subject-matter jurisdiction rather than ordinary, defensive preemption, the court

explicitly applied the STB’s ordinary-preemption analysis. 533 F.3d at 332. We therefore find the court’s

reasoning persuasive in deciding the question of ordinary preemption raised here by the Railroad.

Federal or State law.” § 10501(b).4 The Termination Act therefore “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.’” N.Y. Susquehanna & W. Ry. Corp. v.

Jackson, 500 F.3d 238, 252 (3d Cir. 2007) (quoting Fla. E. Coast Ry. Co. v. City of W.

Palm Beach, 266 F.3d 1324, 1331 (11th Cir. 2001)). “Although States retain the police

powers reserved by the Constitution, the Federal scheme of economic regulation and

deregulation is intended to address and encompass all such regulation and to be

completely exclusive.” PCI Transp. Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535,

544-45 (5th Cir. 2005) (quoting H.R. Rep. No. 104-311, at 95-96 (1995)).

“The STB has articulated a comprehensive test for determining the extent to

which a particular state action or remedy is preempted by § 10501(b).” New Orleans &

Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 332 (5th Cir. 2008).5 The STB’s approach

is persuasive because the STB was authorized by Congress to administer the

Termination Act and is therefore “uniquely qualified to determine whether state law

should be preempted by the [Termination Act].” Emerson v. Kansas City S. Ry. Co., 503

F.3d 1126, 1130 (10th Cir. 2007) (quoting Green Mountain R.R. Corp. v. Vermont, 404

F.3d 638, 642 (2d Cir. 2005)). As the Fifth Circuit recently explained, “[t]he STB’s

preemption analysis distinguishes between two types of preempted state actions or

regulations,” those that are “categorically preempted” and those that are only preempted

“as applied.” Barrois, 533 F.3d at 332.
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 9

First, state actions are “categorically” or “facially” preempted where they “would

directly conflict with exclusive federal regulation of railroads.” Id. (quoting CSX

Transp., Inc., STB Fin. Docket No. 34662, 2005 WL 1024490, at *3 (S.T.B. May 3,

2005)). Courts and the STB have recognized “two broad categories of state and local

actions” that are categorically preempted regardless of the context of the action: (1)

“any form of state or local permitting or preclearance that, by its nature, could be used

to deny a railroad the ability to conduct some part of its operations or to proceed with

activities that the Board has authorized” and (2) “state or local regulation of matters

directly regulated by the Board—such as the construction, operation, and abandonment

of rail lines; railroad mergers, line acquisitions, and other forms of consolidation; and

railroad rates and service.” CSX Transp., 2005 WL 1024490, at *2 (citations and

footnote omitted); see also Barrois, 533 F.3d at 332; Emerson, 503 F.3d at 1130; Green

Mountain, 404 F.3d at 642. Because these categories of state regulation are “per se

unreasonable interference with interstate commerce,” “the preemption analysis is

addressed not to the reasonableness of the particular state or local action, but rather to

the act of regulation itself.” CSX Transp., 2005 WL 1024490, at *3; see also Barrois,

533 F.3d at 332; Green Mountain, 404 F.3d at 644. Second, those state actions that do

not fall into one of these categories may be preempted as applied: “For state or local

actions that are not facially preempted, the section 10501(b) preemption analysis

requires a factual assessment of whether that action would have the effect of preventing

or unreasonably interfering with railroad transportation.” Barrois, 533 F.3d at 332

(quoting CSX Transp., 2005 WL 1024490, at *3).

As the Fifth Circuit recently noted, “the STB has clearly identified where routine

crossing disputes, such as the one at issue in this case, fall in this scheme of ICCTA

preemption.” Id. “Routine crossing disputes,” “despite the fact that they touch the tracks

in some literal sense,” “are not typically preempted.” Id. at 332-33 (noting “that ‘[t]hese

crossing disputes are typically resolved in state courts” (quoting Maumee & W. R.R.

Corp. & RMW Ventures, LLC, STB Fin. Docket No. 34354, 2004 WL 395835, at *2

(S.T.B. Mar. 3, 2004))). We agree that “[t]he STB’s position with respect to these
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 10

6

The district court determined that the Termination Act preempts Mich. Comp. Laws

§ 462.309(6) because the sidewalks at issue constitute “facilities” over which the STB has exclusive

jurisdiction. J.A. at 96 (Mem. Op. at 21) (quoting 49 U.S.C. § 10501(b)(2)). Neither the district court nor

the Railroad, however, has pointed to a definition of “facilities.” We found no prior federal court decisions

or STB decisions holding, either explicitly or implicitly, that sidewalks should be considered “facilities”

under the statute. Indeed, Barrois, which held that a state statute giving private landowners the ability to

install at-grade railroad crossings to reach their property was not preempted by the Termination Act, noted

that regulation of such crossings has historically been “peculiarly within the police power of the states.”

533 F.3d at 333 (quoting Lehigh Valley, 278 U.S. at 35).

routine crossing cases is consistent with the historical, pre-ICCTA rule governing these

crossing disputes.” Id. at 333. As the Supreme Court explained,

The care of grade crossings is peculiarly within the police power of the

states, and, if it is seriously contended that the cost of this grade crossing

is such as to interfere with or impair economical management of the

railroad, this should be made clear. It was certainly not intended by the

Transportation Act to take from the states or to thrust upon the Interstate

Commerce Commission investigation into parochial matters like this,

unless by reason of their effect on economical management and service,

their general bearing is clear.

Id. (quoting Lehigh Valley R.R. Co. v. Bd. of Pub. Util. Comm’rs, 278 U.S. 24, 35

(1928)).6

We therefore apply the as-applied-preemption analysis to the Michigan statutes

at issue. “[T]he touchstone [of this analysis] is whether the state regulation imposes an

unreasonable burden on railroading.” Jackson, 500 F.3d at 253. As summarized by the

Third Circuit, the STB has found that a state regulation is permissible as long as “(1) it

is not unreasonably burdensome, and (2) it does not discriminate against railroads.” Id.;

see also Green Mountain, 404 F.3d at 643. Regarding the unreasonable-burden prong,

“the substance of the regulation must not be so draconian that it prevents the railroad

from carrying out its business in a sensible fashion,” and “the regulation must be settled

and definite enough to avoid open-ended delays.” Jackson, 500 F.3d at 254. To pass

the non-discrimination prong, a state regulation “must address state concerns generally,

without targeting the railroad industry.” Id. States retain their police powers, allowing

them to create health and safety measures, but “those rules must be clear enough that the

rail carrier can follow them and . . . the state cannot easily use them as a pretext for

interfering with or curtailing rail service.” Id.
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 11

Under this analysis, state actions are not preempted merely because they reduce

the profits of a railroad: “We doubt whether increased operating costs are alone

sufficient to establish ‘unreasonable’ interference with railroad operations.” Barrois,

533 F.3d at 335; see also Fla. E. Coast Ry., 266 F.3d at 1338 n.11 (“No statement of

purpose for the ICCTA, whether in the statute itself or in the major legislative history,

suggests that any action which prevents an individual firm from maximizing its profits

is to be pre-empted.”). Although the “costs of compliance” with a state law could be

high, “they are ‘incidental’ when they are subordinate outlays that all firms build into

the cost of doing business.” Jackson, 500 F.3d at 254.

We conclude that Mich. Comp. Laws § 462.309 is not preempted by the

Termination Act, because it is not unreasonably burdensome and does not discriminate

against railroads. We recognize that the district court found that the Railroad has been

losing money and that the costs of sidewalk construction would create a financial burden

for the Railroad. The fact that the statute may prevent the Railroad from maximizing its

profits, however, does not render the statute unreasonably burdensome. See Fla. E.

Coast Ry. Co., 266 F.3d at 1338 n.11 (“Naturally, at some level, all regulation places

constraints on firms’ profit-maximizing behavior.”). A statutory requirement that the

Railroad pay for pedestrian sidewalks and walkways is merely part of the cost of doing

business as a railway running through the center of a town. See Jackson, 500 F.3d at

254.

The fact that Mich. Comp. Laws § 462.309 applies specifically to railroads does

not make it discriminatory. This is not an instance in which the state has chosen to

require something of the Railroad that it does not require of similarly situated entities.

The concerns that animated the Village’s sidewalk construction apply only to the

Railroad because the railroad bisects the town and pedestrian walkways are needed for

public safety. Further, unlike environmental permitting, there is no evidence that local

bodies could target railroads with the statute at issue in order to cause indefinite delays

for railroad operations. See Green Mountain, 404 F.3d at 643. Indeed, the Michigan

statute gives the Railroad an opportunity to construct the sidewalks itself. Thus, because
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 12

7

We make no judgment on the substantive merits of any state-law claims either party may have

against the other stemming from the construction or assessment.

§ 462.309(6) addresses a general state concern about the safety of pedestrians, it does

not discriminate against the Railroad.

As in Barrois, “[t]he Railroad does not allege that private crossings generally are

fundamentally inconsistent with the Railroad’s ability to operate.” 533 F.3d at 334-35.

Instead, the Railroad argues that the manner in which Mich. Comp. Laws § 462.309 was

implemented by the Village has interfered with the Railroad’s operations. Our role,

however, is not to determine whether the Village properly followed the Michigan law

under which it acted; our role is to determine whether requiring the Railroad to pay for

the construction and maintenance of sidewalks could be “easily” used as a “pretext” that

would allow the state of Michigan or its localities to interfere with railroad activities in

an unreasonable or discriminatory manner. Jackson, 500 F.3d at 254; see also Barrois,

533 F.3d at 334 (noting that the court’s role was to determine whether the state statute

interfered with railroad operations rather than to determine if the private landowners had

properly constructed the railroad crossings at issue). Given that § 462.309(6) dictates

that “a railroad shall first be given the right to construct in the same manner as that right

is given to individuals” before the locality may begin construction, the interference with

railroad operations is negligible. Our reading of the record indicates that the particular

difficulties the Railroad encountered owing to the construction did not result from the

construction of walkways and sidewalks per se, but from the construction methods

employed by the Village. We think that “the [Michigan] statutory scheme . . . is

sufficiently broad and flexible to permit the [Michigan] courts to take account of [the

competing interests] without unreasonably interfering with railroad operations.”

Barrois, 533 F.3d at 336.7
No. 07-1664 Adrian & Blissfield R.R. Co. v. Village of Blissfield Page 13

III. CONCLUSION

Because we conclude that the Termination Act does not preempt Mich. Comp.

Laws § 462.309, we REVERSE the judgment of the district court and REMAND for

further proceedings not inconsistent with this opinion.