PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-1934

_____________

MD MALL ASSOCIATES, LLC

Trading as MacDade Mall Associates, L.P.,

 Appellant

v.

CSX TRANSPORTATION , INC.

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-11-cv-04068)

District Judge: Hon. Juan R. Sanchez

_______________

Argued

January 8, 2013

Before: RENDELL, FISHER, and JORDAN, Circuit 

Judges.

(Filed: April 30, 2013)

_______________
2

Marc B. Kaplin [ARGUED]

Pamela M. Tobin

Kaplin, Stewart, Meloff, Reiter & Stein

910 Harvest Drive

P.O. Box 3037

Blue Bell, PA 19422

 Counsel for Appellant

Richard P. Caldarone

Andrew Tauber [ARGUED]

Mayer Brown

1999 K Street, NW

Washington, DC 20006

Heather M. Gamache

John E. Young, IV

Flynn & Wirkus

1500 John F. Kennedy Blvd. - #312

Philadelphia, PA 19102

 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

MD Mall Associates, L.L.C. (“MD Mall”), appeals 

from the summary judgment entered against it by the United 

States District Court for the Eastern District of Pennsylvania

on MD Mall‟s claims that CSX Transportation, Inc. (“CSX”), 

a railroad, is liable for storm water flooding MD Mall‟s 
3

property. For the reasons that follow, we will vacate the 

District Court‟s grant of summary judgment, and remand for 

further proceedings consistent with this opinion.

I. Background1

A. The Runoff Problem

MD Mall owns and operates the MacDade Mall (the 

“Mall”) located in Delaware County, Pennsylvania. The Mall 

is bounded on the south by a single railroad track owned by 

CSX, and, interestingly enough, on the east by South Avenue. 

CSX‟s property consists of the track and two drainage 

ditches, one running along either side of the track. Houses 

located to the south of the track are at a higher elevation than 

the track, and the track is at a higher elevation than the Mall. 

CSX‟s predecessor in interest designed and installed an 

earthen berm on the north side of the track to prevent storm 

water from flowing downhill onto the property occupied by 

the Mall. The berm straddles the property line of the Mall 

and the railroad, with the north side of it sloping down into 

the parking lot. The Mall claims ownership of that slope up 

to the crest of the berm. 

 

1

In accordance with our standard of review, see infra

note 6, we set forth the facts in the light most favorable to 

MD Mall. See Gonzalez v. Sec’y of Dep’t of Homeland Sec., 

678 F.3d 254, 257 (3d Cir. 2012) (“When reviewing a grant 

of summary judgment the court must view the facts in the 

light most favorable to the nonmoving party and draw all 

inferences in that party‟s favor.” (internal quotation marks 

omitted)).
4

For many years after being built, the berm prevented 

storm water from discharging onto MD Mall‟s property. In 

October 2010, however, storm water breached the berm at a 

spot near South Avenue, allowing water runoff and debris 

from CSX‟s property to flow down the slope and overwhelm 

a private storm water inlet located in the Mall parking lot. An 

MD Mall representative sent two letters, dated October 29, 

2010, and January 13, 2011, asking CSX to contact him to 

discuss a resolution to the runoff problem. In response, 

CSX‟s road master responsible for that portion of the track 

inspected the site. Based on the road master‟s findings, a 

CSX engineer wrote in an internal memorandum that, 

“[i]nstead of the water flowing over the crossing [at South 

Avenue] and down the road towards the storm drains, it is not 

reaching the crossing and [is] instead running towards the 

[Mall] property.” (App. at 56.) The engineer proposed that 

CSX dig a “[d]itch” on CSX property “along the area and 

block the hill leading to the property, allowing the water to 

flow into the road and down to [a public] storm drain.” (App. 

at 56.) He also raised the possibility of installing a culvert 

under South Avenue to send the water to a nearby stream. In 

an email dated January 20, 2011, the engineer notified MD 

Mall that CSX intended to implement the first option, which 

was less costly, and that it would complete the project “in a 

timely fashion.” (App. at 57.)

Despite that assurance, CSX did not go forward with 

that plan. Instead, it began constructing a concrete spillway 

on the Mall‟s side of the berm to direct CSX‟s storm water 

into the Mall‟s private drainage inlet. CSX workers cleared

out a channel on the berm and set up wooden forms to create 

the spillway, all of which MD Mall asserts was done without 

its consent, while CSX claims that MD Mall had consented to 
5

the installation in order to stop mud and debris from entering 

the Mall property. 

Whether or not there had been consent, when the 

Mall‟s manager discovered what CSX was doing, he 

immediately halted the work, demanding that the wooden 

forms be removed and that the Mall‟s side of the berm be

restored to its original grade. CSX agreed to halt construction 

of the spillway, but requested permission to install riprap in 

the cleared out channel. MD Mall granted consent in writing 

but insisted that CSX provide a permanent solution to the 

runoff problem. When CSX was not forthcoming with a 

permanent solution, MD Mall filed the present suit, invoking 

diversity jurisdiction in the District Court.

B. Procedural History

MD Mall brought claims of negligence (Count I) and 

continuing storm water trespass (Count II) against CSX for 

“failing to properly maintain CSX‟s property so as to prevent 

water on CSX‟s property from flowing over onto [MD 

Mall‟s] property and causing damage ... .”2 (App. at 122.) 

Although it initially sought “compensatory and consequential 

damages ... , together with prejudgment interest and costs” 

(App. at 123), MD Mall later dropped its demand for 

 

2 MD Mall also brought a separate trespass claim 

(Count III) against CSX for entering the Mall‟s property 

without permission to build the concrete spillway on the 

Mall‟s side of the berm. After the District Court granted 

summary judgment to CSX on Counts I and II but denied 

summary judgment on Count III, MD Mall withdrew Count 

III.
6

damages and sought only injunctive relief that would require 

CSX to remedy the runoff problem. 

Both parties moved for summary judgment. MD Mall 

had learned during discovery that, in March 2009, CSX had 

refurbished the relevant portion of the track, deploying 

approximately 30 pieces of heavy equipment to replace 325 

railroad ties. Based on that information, MD Mall argued in 

its motion for summary judgment that the “substantial 

modifications to the tracks‟ drainage system” in 2009 “led to 

the discharge of CSX‟s water run-off onto the Mall Property 

and the noticeably deep property erosion by fall 2010.” 

(Supplemental App. at 80.) For support, MD Mall cited the 

deposition testimony of its expert, Dr. Frank X. Browne, who 

identified the source of the water problem as CSX‟s 2009 

alteration of the drainage system and the hydrological 

condition of the property. MD Mall also asserted that, for 

five years, CSX had failed to clear out the ditch adjacent to 

the berm. 

The fact that storm water had discharged from CSX‟s 

property onto MD Mall‟s property was evidence, according to 

MD Mall, that CSX had violated a federal regulation enacted 

pursuant to the Federal Railroad Safety Act (the “FRSA” or 

the “Act”), which “require[s] that CSX manage and control 

the stormwater occurring on its property.” (Supplemental 

App. at 90.) That regulation provides that “[e]ach drainage or 

other water carrying facility under or immediately adjacent to 

the roadbed shall be maintained and kept free of obstruction, 

to accommodate expected water flow for the area concerned.” 

49 C.F.R. 213.33. MD Mall argued that § 213.33 imposed on 

CSX a duty to ensure that the earthen berm system that was 

designed to prevent water from flowing onto the Mall 
7

property is properly maintained. (Supplemental App. at 90.) 

Given the erosion of the berm and the consequent flooding, 

MD Mall continued, “CSX is clearly not accommodating the 

expected water flow from its property, as required under 

Section 213.33.”3 (Supplemental App. at 90.) As relief, MD 

Mall requested that “CSX be ordered to control and manage 

the water run-off occurring on its property pursuant to a full 

engineering plan.” (Supplemental App. at 91.)

Despite invoking § 213.33, MD Mall asserted that its 

claims were not preempted by the FRSA, even though that 

Act expressly provides that “[a] state may adopt or continue 

in force a law, regulation, or order related to railroad safety 

... until the Secretary of Transportation (with respect to 

railroad safety matters) ... prescribes a regulation or issues an 

order covering the subject matter of the State requirement.” 

49 U.S.C. § 20106(a)(2). In support of its position, MD Mall 

cited a 2007 amendment to that preemption provision, which 

serves as a “[c]larification regarding State law causes of 

action.” 49 U.S.C. § 20106 (the “Clarification Amendment”

or the “Amendment”). The Clarification Amendment

provides that “[n]othing in [the FRSA] shall be construed to 

preempt an action under State law seeking damages for 

personal injury, death, or property damage alleging that a 

party ... has failed to comply with the Federal standard of 

care established by a regulation or order issued by the 

 

3

See also MD Mall‟s Supplemental Mem. in Opp‟n to 

CSX‟s Motion for Summ. J. at 6 (arguing that the “clear 

mandate” of § 213.33 is that CSX must “manage the 

stormwater on its property so that it is not discharged on to 

the Mall property in a concentrated and increased way”).
8

Secretary of Transportation.” Id. MD Mall argued that,

under the Amendment, its claims were not preempted. 

The District Court saw things differently. It granted 

CSX‟s cross-motion for summary judgment, holding that MD 

Mall‟s claims were blocked by the express preemption 

provision of the FRSA. Because MD Mall had asserted that 

CSX was in violation of § 213.33, the District Court held that 

MD Mall had “implicitly acknowledge[d]” that the regulation 

is applicable to its claims (App. at 7), and the Court then 

determined that the claims were preempted.4

The District Court rejected MD Mall‟s argument that 

its negligence and continuing storm water trespass claims 

were subject to the Clarification Amendment. While state

law actions are permitted to proceed when they allege a 

failure to comply with a federal standard of care, the Court 

held that the Amendment is limited to cases “„seeking 

damages for personal injury, death, or property damage.‟” 

(App. at 8 (quoting 49 U.S.C. § 20106(b)(1)).) Because MD 

Mall “appears to have disavowed any claim for damages and 

is instead seeking only equitable relief,” the Court determined 

that the Amendment did not apply.5 (App. at 8.)

 

4

The District Court mentioned that another regulation, 

49 C.F.R. § 213.103, relates to MD Mall‟s claims. Section 

213.103 requires railroad tracks to be supported by material 

that will, among other things, “[p]rovide adequate drainage 

for the track.” Id. § 213.103(c).

5 Because the District Court concluded that MD Mall‟s 

claims were preempted by the FRSA, it declined to address 

CSX‟s alternative argument that the claims were preempted 

by the Interstate Commerce Commission Termination Act 
9

MD Mall then filed this timely appeal. 

II. Discussion6

A. Waiver and Judicial Estoppel

MD Mall has now discarded its previous position that 

§ 213.33 sets the pertinent standard for measuring CSX‟s 

liability. It argues instead that the regulation “[does] not even 

relate to, let alone cover, a railroad‟s discharge of stormwater 

onto an adjoining property.” (MD Mall‟s Opening Br. at 11.) 

Because MD Mall raises that argument for the first time on 

appeal, CSX asserts that we should not consider it, as MD 

 

(the “ICCTA”). It also declined to evaluate the underlying 

substantive merits of MD Mall‟s state law negligence and 

storm water trespass claims.

6

The District Court had jurisdiction under 28 U.S.C. 

§ 1332, and we have jurisdiction under 28 U.S.C. § 1291. We 

“review [the] District Court‟s grant of summary judgment de 

novo, applying the same standard the District Court applied.” 

Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 

257 (3d Cir. 2012) (internal quotation marks omitted). 

Summary judgment is proper only where the pleadings, 

discovery, and non-conclusory affidavits show that there is no 

genuine issue as to any material fact and that the movant is 

entitled to judgment as a matter of law. Fed. R. Civ. Proc. 

56(c). As earlier noted, supra note 1, when reviewing a grant 

of summary judgment we “must view the facts in the light 

most favorable to the nonmoving party,” in this case MD 

Mall, “and draw all inferences in that party‟s favor.” 

Gonzalez, 678 F.3d at 257 (internal quotation marks omitted).
10

Mall either waived it or is judicially estopped from raising it 

now. We thus begin by addressing waiver and estoppel.

1. Waiver

Arguments that are “asserted for the first time on 

appeal are deemed to be waived and consequently are not 

susceptible to review ... absent exceptional circumstances.” 

Birdman v. Office of the Governor, 677 F.3d 167, 173 (3d 

Cir. 2012) (internal quotation marks omitted). However, 

“[w]hile waiver ordinarily bars raising new arguments for the 

first time on appeal, this rule is one of discretion rather than 

jurisdiction, and it may be relaxed whenever the public 

interest so warrants.” Barefoot Architect, Inc. v. Bunge, 632 

F.3d 822, 834-35 (3d Cir. 2011) (alteration, citations, and 

internal quotation marks omitted); see also Webb v. City of 

Phila., 562 F.3d 256, 263 (3d Cir. 2009) (waiver rule may be 

relaxed “where the issue‟s resolution is of public importance”

(internal quotation marks omitted)). CSX acknowledges that 

this case is of public importance; it argues that MD Mall‟s 

claims, if allowed, could subject it and other railroads to 

similar claims by myriad other landowners with property near 

railroad tracks. Conversely, if MD Mall‟s claims are 

preempted, property owners may have no remedy for the 

discharge of storm water onto their land by a neighboring 

railroad. Either way, MD Mall‟s claims are of public 

importance, and we accordingly decline to apply the general 

rule of waiver in this case.

2. Judicial Estoppel

CSX also contends that MD Mall is judicially estopped 

from claiming that § 213.33 does not cover its claims. 
11

“Judicial estoppel is a judge-made doctrine that seeks to 

prevent a litigant from asserting a position inconsistent with 

one that [it] has previously asserted in the same or in a 

previous proceeding.” Macfarlan v. Ivy Hill SNF, LLC, 675 

F.3d 266, 272 (3d Cir. 2012) (internal quotation marks 

omitted). “The doctrine exists to protect the integrity of the 

judicial process and to prohibit parties from deliberately 

changing positions according to the exigencies of the 

moment.” Id. (internal quotation marks omitted). That said, 

“we have consistently stated that the doctrine should only be 

applied to avoid a miscarriage of justice.” Krystal CadillacOldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d 

314, 319 (3d Cir. 2003).

“[T]hree factors inform a federal court‟s decision 

whether to apply” judicial estoppel: “there must be (1) 

irreconcilably inconsistent positions; (2) adopted in bad faith; 

and (3) a showing that estoppel addresses the harm and no 

lesser sanction is sufficient.” G-I Holdings, Inc. v. Reliance 

Ins. Co., 586 F.3d 247, 262 (3d Cir. 2009) (alterations and 

internal quotation marks omitted). However, “judicial 

estoppel is generally not appropriate where the defending 

party did not convince the District Court to accept its earlier 

position.” Id. CSX insists that MD Mall did convince the 

Court to accept its earlier position, because “the court did

accept the Mall‟s „implicit[] acknowledg[ment]‟ that „the 

drainage regulation „covers‟ the subject of drainage‟ in the 

areas implicated by this case.” (CSX‟s Br. at 22 (quoting 

App. at 7).)

As MD Mall correctly points out, however, the District 

Court‟s citation of MD Mall‟s acknowledgment that § 213.33 

covers its claims does not rise to the level of reliance 
12

necessary to trigger judicial estoppel. Before determining 

that judicial estoppel bars relief, “courts regularly inquire 

whether the party has succeeded in persuading a court to 

accept that party‟s earlier position, so that judicial acceptance 

of an inconsistent position in a later proceeding would create 

the perception that either the first or the second court was 

misled.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001) 

(internal quotation marks omitted). Because judicial estoppel 

“generally prevents a party from prevailing in one phase of a 

case on an argument and then relying on a contradictory 

argument to prevail in another phase,” id. at 749 (internal 

quotation marks omitted), “[a]bsent success in a prior 

proceeding, a party‟s later inconsistent position introduces no 

risk of inconsistent court determinations and thus poses little 

threat to judicial integrity,” id. at 750-51 (citation and internal 

quotation marks omitted).

Judicial estoppel thus does not apply here because MD 

Mall did not obtain a benefit from the arguments it made in 

the District Court. The arguments it made did not prevail in 

any meaningful sense. The District Court instead granted 

summary judgment to CSX. In the decisions that CSX cites 

to support its judicial estoppel argument, by contrast, judicial 

estoppel was found to bar relief because each estopped party 

had obtained an unfair litigation benefit as a result of its prior 

contradictory position. See New Hampshire, 532 U.S. at 751-

52 (state barred from changing the location of a boundary to 

which it had agreed in a prior consent order approved by the

court); Macfarlan, 675 F.3d at 273-74 (plaintiff barred from 

seeking reinstatement to his former job when he had accepted

disability benefits based on a purported inability to work); 

Krystal, 337 F.3d at 320 (debtor estopped from asserting 

claim which he failed reveal to creditors so as to keep the 
13

recovery on the claim for himself). The doctrine of judicial 

estoppel “should only be applied to avoid a miscarriage of 

justice.” Krystal, 337 F.3d at 319. In this case, MD Mall did 

not benefit from its inconsistent position in the District Court, 

and no miscarriage of justice would result from our 

entertaining the argument it now advances on appeal. Thus, 

while we have no desire to encourage the kind of headsnapping inconsistency manifested in MD Mall‟s arguments, 

we decline to treat its new argument as judicially estopped.

B. Express Preemption Under the FRSA

As already noted, the FRSA provides that a state “law, 

regulation, or order related to railroad safety” shall be 

preempted by a regulation or order issued by “the Secretary 

of Transportation (with respect to railroad safety matters)” 

that “cover[s] the subject matter of the State requirement.” 49 

U.S.C. § 20106(a)(2). Pursuant to the previously described 

2007 Clarification Amendment to that express preemption 

provision, even though a federal regulation “covers” a state 

law related to railroad safety, a plaintiff may still bring claims 

“seeking damages for personal injury, death, or property 

damage” when the plaintiff “alleg[es] that a party ... has 

failed to comply with the Federal standard of care established 

by a regulation or order issued by the Secretary of 

Transportation.” Id. § 20106(b)(A) (2007). 

In Zimmerman v. Norfolk Southern Corp., 706 F.3d 

170 (3d Cir. 2013), we explained that, under the Clarification 

Amendment, “claimants can avoid preemption by alleging a 

violation of either a „Federal standard of care‟ or the 

railroad‟s „own plan, rule, or standard that it created pursuant 

to a regulation or order.‟” Id. at 177 (quoting 49 U.S.C. 
14

§ 20106(b)(1)(A)-(B)). The Amendment “restricts 

preemption in some respects,” id., by clarifying that a claim is

permitted when the allegation is that the railroad did not 

comply with the standard established by a federal regulation 

(traveling at 90 m.p.h, for example, despite a regulation 

limiting train speeds to 60 m.p.h.), “even when [the]

regulation covers the subject matter of [the] claim,” id. The 

Clarification Amendment also “preserves cases interpreting 

the phrase „covering the subject matter of the State 

requirement,‟” so that the well-developed law indulging a 

presumption against preemption, as further described herein, 

remains intact. Id. (quoting 49 U.S.C. § 20106(a)(2)). 

Zimmerman calls for us to follow a two-step process:

“We first ask whether the defendant allegedly violated either 

a federal standard of care or an internal rule that was created 

pursuant to a federal regulation.” Id. at 178. If so, as was the 

case in Zimmerman, “the plaintiff‟s claim avoids 

preemption.” Id. (citing 49 U.S.C. § 20106(b)(1)(A)-(B)). If 

not, we ask the second question, which is “whether any 

federal regulation covers the plaintiff‟s claim.” Id. (citing 49 

U.S.C. § 20106(a)(2)).7

 

7

The universe of possible claims can be thought of as 

fitting within three categories: first, those, like the ones in 

Zimmerman, that depend upon the breach of a standard set by 

federal law (or adopted by a railroad from federal law) as the 

basis of liability and are thus not preempted; second, those 

that depend on state law as the basis for liability but which 

are preempted because there is an applicable FRSA regulation 

that entirely covers the plaintiff‟s claim; and, third, those that 

depend on state law and are not preempted because there is no 

such regulation. The first Zimmerman question seeks to 
15

This case is different from Zimmerman in that, on 

appeal, MD Mall has abandoned the argument that CSX 

violated a federal standard of care and instead insists that the 

pertinent federal regulation, § 213.33, does not cover a storm

water discharge dispute of the type before us now. (MD 

Mall‟s Opening Br. at 11.) Thus, MD Mall‟s claims are only

preserved from preemption if no federal regulation enacted 

pursuant to the FRSA “cover[s] the subject matter [i.e. storm 

water runoff] of the State requirement.” 49 U.S.C. 

§ 20106(a)(2).8

 

discover which claims fall within the first category, and the 

second Zimmerman question brings to light the claims that 

fall within the latter two categories.

8 Although MD Mall has abandoned its argument 

under the Clarification Amendment and we therefore need not 

evaluate whether the Amendment applies here, it did argue in 

the District Court, as already described, that § 213.33 

“require[s] that CSX manage and control the stormwater 

occurring on its property” (Supplemental App. at 90), and that 

CSX breached that duty through negligence during the 2009 

track refurbishment. It said that it was therefore authorized to 

bring suit under the Clarification Amendment. The District 

Court held, however, that the Clarification Amendment only 

saves from preemption state law actions that “seek[] damages 

for personal injury, death, or property damage.” 49 U.S.C. 

§ 20106(b)(1). The Court read the Amendment‟s silence on 

equitable relief as precluding MD Mall‟s request for an 

injunction. That conclusion is open to question.

The Clarification Amendment was a pinpoint piece of 

legislation meant to overturn federal court decisions in the socalled “Minot Derailment Cases.” Those cases, which 
16

 

involved the horrifying derailment near Minot, North Dakota, 

of tank cars carrying toxic chemicals, interpreted the FRSA to 

preempt claims for damages, even when a plaintiff alleged 

that a railroad violated federal regulations or its own internal 

rules. See Lundeen v. Canadian Pac. Ry. Co., 507 F. Supp. 

2d 1006, 1009 (D. Minn. 2007); Mehl v. Canadian Pac. Ry., 

Ltd., 417 F. Supp. 2d 1104, 1106 (D.N.D. 2006). According 

to its legislative history, the Amendment was intended to 

“clarify the intent and interpretations of the existing 

preemption statute and to rectify the Federal court decisions 

related to the Minot, North Dakota accident that are in 

conflict with precedent.” H.R. Rep. No. 110-259, at 351, 120 

Cong. Rec. H8589 (2007), U.S. Code Cong. & Admin. News 

2007, p. 119 (emphasis added). To further hammer home its 

dissatisfaction with the Minot Derailment Cases, Congress 

applied the Amendment to “all pending State law causes of 

action arising from activities or events occurring on or after 

January 18, 2002,” the exact date of the Minot derailment. 

Id.; see also Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 

1214 (10th Cir. 2008) (noting that Congress enacted the 

Amendment to rectify Minot Derailment Cases); Kurns v. 

Chesterton, No. 08-2216, 2009 WL 249769, at *5 (E.D. Pa. 

Feb. 3, 2009) (“[T]he amendments were clearly directed at 

the Minot, North Dakota, train derailment occurring on 

January 18, 2002.”).

Aimed as it was at the specific difficulty Congress 

perceived in the Minot Derailment Cases, the Clarification 

Amendment speaks only about claims for damages, but that 

does not mean that suits for injunctive relief are beyond its 

clarifying effect. Congress used the word “clarification,” 

which “indicates [it] sought to resolve an ambiguity rather 

than effect a substantive change” in railroad liability under 
17

When interpreting the FRSA‟s preemption provisions, 

we apply a general “presumption against preemption.” 

Bruesewitz, 561 F.3d at 240. “In areas of traditional state 

regulation, we assume that a federal statute has not 

supplanted state law unless Congress has made such an 

intention „clear and manifest.‟” Bates v. Dow Agrosciences, 

LLC, 544 U.S. 431, 449 (2005) (internal quotation marks 

omitted). “The presumption is relevant even when there is an 

express pre-emption clause. That is because „when the text of 

a pre-emption clause is susceptible of more than one plausible 

reading, courts ordinarily accept the reading that disfavors 

pre-emption.‟ Thus, the presumption operates both to prevent 

and to limit preemption.” Franks Inv. Co. v. Union Pacific 

R.R. Co., 593 F.3d 404, 407 (5th Cir. 2010) (quoting Altria 

Grp., Inc. v. Good, 555 U.S. 70, 77 (2008)) (internal 

quotation marks omitted); see also N.Y. Susquehanna & W. 

Ry. Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir. 2007) (“[A] 

federal law does not preempt state laws where the activity 

regulated by the state is merely a peripheral concern of the 

federal law ... .” (alteration and internal quotation marks 

omitted)). In the end, preemption applies only if it “is the 

 

the FRSA. Henning, 530 F.3d at 1216. Accordingly, the 

Clarification Amendment indicates that “a state law cause of 

action is not preempted when it is based on an allegation that 

a party failed to comply with a federal standard of care 

established by regulation or failed to comply with its own 

plan, rule or standard created pursuant to a federal 

regulation.” Gauthier v. Union Pac. R.R. Co., 644 F. Supp. 

2d 824, 835 (E.D. Tex. 2009). A reading of the Clarification 

Amendment that leaves claims for injunctive relief preempted 

is not something we need to address now, but we note some 

difficulty with the District Court‟s reasoning.
18

clear and manifest purpose of Congress” in enacting the law 

in question, CSX Transp., Inc. v. Easterwood, 507 U.S. 658,

664 (1993) (internal quotation marks omitted), because “the 

purpose of Congress is the ultimate touchstone in every preemption case,” Wyeth v. Levine, 555 U.S. 555, 565 (2009)

(internal quotation marks omitted).

Beyond those general principles, the Supreme Court 

has determined that the FRSA‟s preemption provision 

“displays considerable solicitude for state law.” Easterwood, 

507 U.S. at 665. For example, Congress enacted the FRSA 

“to promote safety in every area of railroad operations and

reduce railroad-related accidents and incidents,” 49 U.S.C. 

§ 20101, and the Secretary of Transportation has authority to 

“prescribe regulations and issue orders for every area of 

railroad safety,” id. § 20103(a), but the preemptive effect of 

the statute reaches only state laws “covered” by the statute‟s 

implementing regulations. Id. § 20106(a)(2). Because the 

term “cover” is a “restrictive term,” preemption will not apply 

if the FRSA regulation in question merely “touch[es] upon or 

relate[s] to” the subject matter of state law. Easterwood, 507 

U.S. at 664 (internal quotation marks omitted). Rather, “preemption will lie only if the federal regulations substantially 

subsume the subject matter of the relevant state law.” Id.

We accordingly held in Strozyk v. Norfolk Southern 

Corp., 358 F.3d 268 (3d Cir. 2004), that a regulation‟s “bare 

mention of ... limited visibility ... does not indicate an intent 

to regulate [that] condition[],” and that a suit against a 

railroad alleging a condition of poor visibility at a railroad 

crossing was not preempted. Id. at 273. Other courts have 

likewise concluded that a federal regulation dictating that 

“[v]egetation on railroad property which is on or immediately 
19

adjacent to [the] roadbed shall be controlled so that it does not 

... [o]bstruct visibility of railroad signs and signals,” 49 

C.F.R. § 213.37(b), serves to “preempt[] any state-law claim 

regarding vegetative growth that blocks a sign immediately 

adjacent to a crossing, but it does not impose a broader duty

[under federal law] to control vegetation so that it does not 

obstruct a motorist‟s visibility of oncoming trains.” Shanklin 

v. Norfolk S. Ry. Co., 369 F.3d 978, 987 (6th Cir. 2004) 

(internal quotation marks omitted). Thus a state law claim is 

not preempted if it alleges negligence in allowing vegetation 

to obscure safe lines of sight at a railroad crossing. See, e.g.,

Peters v. Union Pac. R.R. Co., 455 F. Supp. 2d 998, 1003 

(W.D. Mo. 2006) (vegetation in crossing and right-of-way 

were not areas on or immediately adjacent to tracks and 

therefore claims that they obstructed sight lines were not 

preempted under the FRSA); Murrell v. Union Pac. R.R. Co., 

544 F. Supp. 2d 1138, 1154 (D. Or. 2008) (claims for failing 

to provide adequate visibility not preempted under the 

FRSA); Anderson v. Wis. Cent. Transp. Co., 327 F. Supp. 2d 

969, 979-80 (E.D. Wis. 2004) (claims of vegetation beyond 

the roadbed or immediately adjacent to it not preempted); cf. 

Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 516 (5th 

Cir. 1999) (sound capacity safety regulation addresses only 

the sound-producing capacity of the whistles and does not 

substantially subsume regulations on when whistles are 

sounded); Bradford v. Union Pac. R.R. Co., 491 F. Supp. 2d 

831, 838-39 (W.D. Ark. 2007) (failure to keep proper lookout 

and crew fatigue not preempted because regulations merely 

touched upon the subject and did not subsume them).

CSX argues that § 213.33, which by its terms requires 

that a railroad‟s drainage facilities “under or immediately 

adjacent to” the track “be maintained and kept free of 
20

obstruction,” 49 C.F.R. § 213.33, preempts Pennsylvania law 

governing storm water runoff. As the railroad sees it, MD 

Mall‟s claims must be dismissed because § 213.33 “cover[s] 

the subject of drainage under and around the tracks – and 

therefore preempt[s] the Mall‟s claims, which concern 

precisely the same topic.”9 (CSX‟s Br. at 18.) Although it 

has acknowledged that the limited purpose of § 213.33 “is to 

keep water away from the tracks, that‟s it” (Supplemental 

App. at 133), CSX has nevertheless taken the aggressive 

position that the railroad is thereby permitted to channel its 

rainwater onto a neighboring property. (See, e.g., 

Supplemental App. at 131 (“The railroad can do whatever it 

needs to do to keep water away ... .”); id. at 133 

(“[Section 213.33] doesn‟t say, you can‟t put it on your –

your neighbor‟s land, it doesn‟t say anything, it just says, 

keep it away from the tracks.”).

We reject that conclusion. First, to the extent CSX is 

saying that, as long as a regulation involves the same general 

topic as a plaintiff‟s claim, such as water drainage, the 

regulation “covers” that claim, the argument is at odds with 

Supreme Court precedent. A regulation must do more than 

“touch upon or relate to [the] subject matter” of a state law 

 

9 CSX also asserts that 49 C.F.R. § 213.103(c), which 

requires railroads to use ballast that “[p]rovide[s] adequate 

drainage for the track” (see supra n.4), serves with § 213.33 

to “cover the subject of drainage under and around the 

tracks.” (CSX‟s Br. at 27-28.) The railroad provides no 

argument, however, for how § 213.103 subsumes state storm 

water trespass law other than as a tag-along to § 213.33. We 

therefore confine our analysis to CSX‟s arguments regarding 

§ 213.33.
21

claim; it must “substantially subsume” it. Easterwood, 507 

U.S. at 664. The railroad‟s argument for preemption here has 

even less to recommend it than the argument in Strozyk that a 

regulation requiring vegetation to be trimmed away from 

signs preempted a claim that overgrown vegetation created an 

unsafe crossing. Stozyk, 358 F.3d at 273. We cannot read the 

silence of § 213.33 on a railroad‟s duties to its neighbors 

when addressing track drainage as an express abrogation of 

state storm water trespass law. Given that the FRSA provides 

no express authorization for disposing of drainage onto an 

adjoining property, the presumption must be that state laws 

regulating such action survive, see Easterwood, 507 U.S. at 

668 (noting that preemption is improper when “the 

regulations provide no affirmative indication of their effect on 

negligence law” (emphasis added)).

Second, the type of harm sought to be avoided by 

§ 213.33 is wholly different than the harm alleged by MD 

Mall. Several courts interpreting the Federal Employers 

Liability Act (“FELA”), 45 U.S.C. §§ 51-60, which protects 

railroad employees from railroad negligence,10 have held that 

 

10 Although FELA is a federal statute and federal 

preemption “is inapplicable to a potential conflict between 

two federal statutes,” Tufariello v. Long Island R.R. Co., 458 

F.3d 80, 86 (2d Cir. 2006), there is a general consensus that 

“the uniformity demanded by the FRSA „can be achieved 

only if [FRSA regulations] are applied similarly to a FELA 

plaintiff‟s negligence claim and a non-railroad-employee 

plaintiff‟s state law negligence claim.‟” Nickels v. Grand 

Trunk W. R.R., Inc., 560 F.3d 426, 430 (6th Cir. 2009) 

(quoting Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th 

Cir. 2001)); see also id. (“Dissimilar treatment of the claims 
22

“whether compliance with applicable FRSA safety 

regulations precludes a finding that a railroad has been 

negligent” depends in large part on whether the regulations in 

question “directly address[] the type of harm that ultimately 

resulted.” Cowden v. BNSF Ry. Co., 738 F. Supp. 2d 932, 

937 (E.D. Mo. 2010); see also Kansas City S. Ry. Co. v. 

Nichols Constr. Co., 574 F. Supp. 2d 590, 599 (E.D. La. 

2008) (“[T]he types of dangers and precautions contemplated 

by a railroad safety regulation are determinative of whether or 

not a railroad‟s compliance with regulations will shield it 

from liability.”). If the regulations do address the type of 

harm alleged, “the compliance with [those] regulation[s] will 

preclude a finding of liability ... .” Cowden, 738 F. Supp. 2d 

at 937. On the other hand, if a plaintiff‟s injuries “come 

about in a way not contemplated by a safety regulation, then 

the railroad‟s compliance with that regulation might not 

preclude its having failed to exercise a reasonable standard of 

care.” Nichols Constr, 574 F. Supp. 2d at 599. “Numerous 

courts have applied this general principle in finding that a 

 

would have the untenable result of making the railroad safety 

regulations established under the FRSA virtually 

meaningless: The railroad could at one time be in compliance 

with federal railroad safety standards with respect to certain 

classes of plaintiffs yet be found negligent under the FELA 

with respect to other classes of plaintiffs for the very same 

conduct.” (internal quotation marks omitted)). As a result, 

courts apply the principles distilled by Easterwood and its 

progeny in determining whether a claim under FELA is 

substantially subsumed, and therefore precluded, by railroad 

safety regulations enacted pursuant to the FRSA, and we 

accordingly apply the reasoning of the FELA cases by 

analogy.
23

given FRSA regulation was or was not intended to prevent 

the harm the plaintiff suffered, and that the defendant 

railroad‟s duty of care accordingly was or was not subsumed 

by the regulation.” Cowden, 738 F. Supp. 2d at 938.

Compare Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th 

Cir. 2001) (excessive-speed claim precluded by FRSA 

regulations concerning speed limits), with Tufariello v. Long 

Island R.R. Co., 458 F.3d 80, 86 (2d Cir. 2006) (holding that 

a railroad employee could bring a negligence claim against 

his employer for hearing loss resulting from long-term 

exposure to train horns because no FRSA preclusion existed,

as the FRSA only prescribed minimum sound levels for 

warning devices on trains).

Section 213.33 is, by CSX‟s own admission, plainly

intended to prevent water from pooling on or around railroad 

tracks and thus to avoid potentially dangerous conditions 

occasioned by standing water, such as the presence of debris 

on tracks, icing conditions, and compromised track integrity. 

There is no indication whatsoever that it was intended to 

address storm water discharge onto a neighboring property, 

which is the harm alleged by MD Mall.11 Again, CSX 

 

11 The dissent claims that, in looking to the type of 

harm sought to be avoided by an FRSA regulation, we are 

flouting Easterwood‟s “unequivocal instruction” that, “in 

determining the preemptive effect of a regulation, the only 

question is whether the regulation covers the subject matter.” 

(Dissent Op. at 5 (citing Easterwood, 507 U.S. at 664).) As 

proof, the dissent points to a statement in Easterwood, made 

with reference to an FRSA regulation governing train speed, 

that the FRSA‟s preemption provision “does not ... call for an 

inquiry into the Secretary‟s purposes, but instead directs the 
24

 

courts to determine whether regulations have been adopted 

that in fact cover the subject matter of train speed.” 

Easterwood, 507 U.S. at 675. By looking to the purpose 

behind an FRSA regulation, the dissent insists, “we divert our 

attention from the „coverage‟ of [§ 213.33],” and “we 

disregard the preemption analysis required under 

Easterwood.” (Dissent Op. at 6.)

Our colleague‟s reading of Easterwood is out of 

context. When the Supreme Court made that statement, it had 

already established that the train speed regulation in question 

“should be understood as covering the subject matter of train 

speed with respect to track conditions, including the 

conditions posed by grade crossings.” Easterwood, 507 U.S. 

at 675. In other words, the harm sought to be avoided by the 

relevant regulation was the danger posed by fast moving 

trains. The plaintiff below “nevertheless maintain[ed] that 

pre-emption is inappropriate because the Secretary‟s primary 

purpose in enacting the speed limits was not to ensure safety 

at grade crossings, but rather to prevent derailments.” Id. 

Having already determined that the regulation covered “train 

speed” with respect to, among other things, “conditions posed 

by grade crossings,” the Court saw no justification for delving 

into the relative weight of the particular railroad safety 

concerns the Secretary had in mind when promulgating the 

regulation. Id. 

Our dissenting colleague counters that “[t]he nature of 

the harm [addressed by a regulation] is ... irrelevant in 

determining „coverage.‟” (Dissent Op. at 6 n.7.) That, 

however, denies that the purpose of a regulation bears on its 

scope. We see nothing in Easterwood to support that 

extraordinary claim, which is contrary to ordinary rules of 

construction, in general, see Crandon v. United States, 494 
25

 

U.S. 152, 158 (1990) (“In determining the meaning of [a] 

statute, we look not only to the particular statutory language, 

but to the design of the statute as a whole and to its object and 

policy.”), and to well-settled rules for evaluating the 

preemptive scope of federal statutes and regulations, in 

particular, see Altria Grp., 555 U.S. at 76 (“Our inquiry into 

the scope of a statute‟s pre-emptive effect is guided by the 

rule that the purpose of Congress is the ultimate touchstone in 

every pre-emption case.” (alteration and internal quotation 

marks omitted)). 

An analogy to § 213.33 brings clarity to the matter. 

Section 213.33 seeks to prevent harms associated with water 

pooling on or around railroad tracks – harms such as icing 

conditions, compromised track integrity, a greater likelihood 

of dangerous obstructions occasioned by standing water, and 

the like. An allegation that such conditions led to an accident 

would be “covered” by § 213.33, regardless of whether the 

actual harm caused by the alleged condition was great (e.g. a 

train derailment) or relatively small (e.g. a slip and fall). 

Whether the Secretary had train derailments foremost in mind 

in promulgating § 213.33 is irrelevant, in other words, 

because the regulation seeks generally to avoid harms caused 

by an inadequately drained track.

Related as it is to railroad safety – as it must be under 

49 U.S.C. § 20106(a)(2) – § 213.33 does not seek to avoid the 

harms associated with a railroad‟s discharge of storm water 

onto an adjoining property. Whether the railroad disposes of 

its runoff by channeling it to the public storm water system or 

to its neighbor‟s property is irrelevant to the regulation‟s 

railroad safety purpose. And given that the regulation and the 

FRSA do not otherwise relieve railroads of their state law 

duties to their neighbors we are reluctant to hold that § 213.33 
26

pressed its understanding of § 213.33 at oral argument in the 

District Court, saying that § 213.33 “is a drainage regulation” 

that “essentially” tells railroads “to keep the water off the 

tracks because it‟s dangerous to have water there, because it 

will deteriorate the track.” (Supplemental App. at 133.) CSX

represented that “the intent of” the drainage regulation “is to 

keep water away from the tracks, that‟s it.” (Supplemental 

App. at 133.) It is accordingly difficult to conclude that 

§ 213.33 “was ... intended to prevent the harm plaintiff 

suffered,” i.e., storm water trespass, or “that the defendant 

railroad‟s duty of care” with respect to state storm water 

trespass law was “subsumed by the regulation.” Cowden, 738 

F. Supp. 2d at 938 (citations omitted).

Finally, the position advocated by CSX – that because 

§ 213.33 does not prohibit storm water discharge onto 

adjoining property it therefore permits it – is troubling 

because, as the Tenth Circuit said in Emerson v. Kansas City 

Southern Railway Co., 503 F.3d 1126 (10th Cir. 2007), it “has 

no obvious limit, and[,] if adopted,” could “lead to absurd 

results.” Id. at 1132. Although Emerson interpreted a 

question of preemption under the Interstate Commerce 

Commission Termination Act (the “ICCTA”), the Tenth 

Circuit‟s observations about the limitless and absurd results 

occasioned by an expansive interpretation of an express 

preemption provision are pertinent here, especially in light of 

the FRSA‟s solicitude for state law. See Easterwood, 507 

U.S. at 664 (noting that the FRSA‟s preemption provision 

“displays considerable solicitude for state law”).

 

“covers” MD Mall‟s storm water discharge claims.
27

The plaintiffs in Emerson alleged that, when the 

defendant railroad replaced old, deteriorated rail ties, it 

“regularly discarded” the ties in a nearby drainage ditch. 

Emerson, 503 F.3d at 1128. The ditch consequently became 

clogged, and the plaintiffs‟ property flooded. Id. The 

railroad argued that subjecting it to liability for discarding old 

rail ties would interfere with the ICCTA, which provides that

“remedies ... 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). The court 

rejected that argument, reasoning that “[i]f the ICCTA 

preempts a claim stemming from improperly dumped railroad 

ties, it is not a stretch to say that the Railroad could dispose of 

a dilapidated engine in the middle of Main Street – a cheap 

way to be rid of an unwanted rail car.” Emerson, 503 F.3d at 

1132. “After all,” the court continued, “in this hypothetical

... the Railroad is merely disposing of unneeded railroad 

equipment in a cost-conscious fashion. Our holding

[rejecting the railroad‟s demand for sweeping preemption] ... 

interprets the ICCTA‟s preemption clause such that this 

absurd result is avoided.” Id.

In line with that persuasive reasoning, we must take a 

sensible view of the FRSA‟s preemption provision, avoiding

the carte blanche ruling the railroad seeks. Longstanding 

state tort and property laws exist for a reason, and the FRSA‟s

laudatory safety purpose should not be used as a cover to 

casually cast them aside. See Easterwood, 507 U.S. at 668 

(noting that preemption is improper when “the regulations 

provide no affirmative indication of their effect on negligence 

law”). For if CSX is free to negligently discharge its storm 

water onto its neighbor‟s property, why should it not be 

allowed to do so intentionally? It might simplify CSX‟s 
28

duties under § 213.33 if it could simply install drainage pipes 

that empty directly onto adjoining properties. Judging by the 

testimony of CSX‟s road master, who stated that CSX‟s sole 

concern when conducting the 2009 track refurbishment was 

to ensure that storm water drained away from the track and 

that it was not concerned about storm water discharging onto 

the adjoining property, and given CSX‟s argument in the 

District Court that § 213.33 allows a “railroad [to] do 

whatever it needs to do to keep water away” from the railroad 

track, including directing it onto a neighbor‟s property 

(Supplemental App. at 131, 133), and further given the 

attempt by the railroad in this case to build a spillway 

emptying directly into the Mall‟s storm drain, CSX‟s position 

is not far removed from that extreme. The constrained scope 

given to the FRSA‟s preemption provision by the Supreme 

Court in Easterwood cannot support such an understanding of 

§ 213.33.

12

 

12 The dissent characterizes our analysis as holding 

that, “even if [the] FRSA clearly covers the conduct of a 

railroad, such that the matter is preempted under Easterwood, 

a claimant could, nonetheless, assert a claim for any resulting 

or consequential injury that flows from the covered conduct.” 

(Dissent Op. at 4.) Viewing our analysis in that way, the 

dissent claims that we “gut ... preemption analysis” and 

“turn[] preemption on its head,” which “will bring about 

needless confusion in our jurisprudence as to the proper 

preemption analysis.” (Id. at 9.) Our opinion here does no 

such thing. When a regulation covers (in that it substantially 

subsumes) a plaintiff‟s state law claims, the FRSA applies, 

and the suit will be preempted, assuming the Clarification 

Amendment does not revive it. Our conclusion is that 

§ 213.33, which requires railroads to maintain systems that 
29

Accordingly, we hold that the FRSA‟s express 

preemption provision does not apply to MD Mall‟s claims.

C. Implied Conflict Preemption

Even though the FRSA‟s express preemption provision 

does not operate to extinguish MD Mall‟s claims, the present 

lawsuit may be “pre-empted by implication because the statelaw principle [it] seek[s] to vindicate would conflict with 

federal law.” Freightliner Corp. v. Myrick, 514 U.S. 280, 287 

(1995).13 A court may find implied conflict pre-emption 

“where it is impossible for a private party to comply with 

both state and federal law,” Crosby v. Nat’l Foreign Trade 

 

adequately drain water away from the track, does not 

substantially subsume MD Mall‟s claims regarding water 

discharge onto their property, not that MD Mall‟s claims may 

proceed even though § 213.33 covers its claims.

13 The Court in Myrick rejected “the argument that [it] 

need not reach the conflict pre-emption issue at all” because 

“implied pre-emption cannot exist when Congress has chosen 

to include an express pre-emption clause in a statute.” 

Myrick, 514 U.S. at 287. At the same time, however, the 

Court acknowledged that prior case law “supports an 

inference that an express pre-emption clause forecloses 

implied pre-emption; [though] it does not establish a rule.” 

Id. at 289; see also id. at 288 (“The fact that an express 

definition of the pre-emptive reach of a statute „implies‟ – i.e., 

supports a reasonable inference – that Congress did not intend 

to pre-empt other matters does not mean that the express 

clause entirely forecloses any possibility of implied preemption.”).
30

Council, 530 U.S. 363, 373 (2000), or “where under the 

circumstances of a particular case, the challenged state law 

stands as an obstacle to the accomplishment and execution of 

the full purposes and objectives of Congress.” Id. (alterations 

and internal quotation marks omitted). “What is a sufficient 

obstacle is a matter of judgment, to be informed by examining 

the federal statute [or regulation] as a whole and identifying 

its purpose and intended effects ... .” Id. “The mere fact of 

„tension‟ between federal and state law is generally not 

enough to establish an obstacle supporting preemption, 

particularly when the state law involves the exercise of 

traditional police power.” Madeira v. Affordable Housing 

Found., Inc., 469 F.3d 219, 241 (2d Cir. 2006). Rather, “[t]he 

principle is thoroughly established that the exercise by the 

state of its police power, which would be valid if not 

superseded by federal action, is superseded only where the 

repugnance or conflict is so direct and positive that the two 

acts cannot be reconciled or consistently stand together.” 

Jones v. Rath Packing Co., 430 U.S. 519, 544 (1977) 

(Rehnquist, J., concurring in part and dissenting in part) 

(quoting Kelly v. Washington, 302 U.S. 1, 10 (1937)) (internal 

quotation marks omitted).

Conflict preemption thus embraces two distinct 

situations. In the easier but rarer case, compliance with both 

federal and state duties is simply impossible. See, e.g., 

Southland Corp. v. Keating, 465 U.S. 1 (1984) (state law 

requiring judicial determination of certain claims preempted 

by federal law requiring arbitration of those claims). In the 

second and more common situation, compliance with both 

laws is possible, yet state law poses an obstacle to the full 

achievement of federal purposes.
31

We can confidently conclude that this case is not of the 

former variety. As CSX‟s engineers suggested when studying 

the breakdown of the berm, the runoff problem is remediable, 

though at some cost to the company, and it is therefore not

impossible for CSX to comply both with Pennsylvania storm 

water trespass law and § 213.33. It would indeed be odd to 

conclude that dual compliance is not possible given that CSX 

successfully did just that for a number of decades without 

difficulty.

We are less confident, however, in saying that 

Pennsylvania law does not, “under the circumstances of [this]

particular case, ... stand[] as an obstacle to the 

accomplishment and execution of the full purposes and 

objectives of Congress.” Crosby, 530 U.S. at 373 (internal 

quotation marks omitted). We do not know, because the 

District Court made no findings of fact, whether and to what 

extent, if any, Pennsylvania law stands as an obstacle to the 

accomplishment and execution of § 213.33‟s railroad safety 

purpose. Whether CSX can employ reasonable means to 

comply with § 213.33‟s drainage requirements in this specific 

case while also complying with Pennsylvania law regarding 

storm water trespass is a question of fact. See Arizona v. 

United States, __ U.S. __, 132 S.Ct. 2492, 2515 (2012) 

(Scalia, J., concurring in part and dissenting in part) (arguing 

that “[i]t is impossible” to “„determine whether, under the 

circumstances of this particular case, [the State‟s] law stands 

as an obstacle to the accomplishment and execution of the full 

purposes and objectives of Congress,” without “a factual 

record concerning the manner in which Arizona is 

implementing” state law); James T. O‟Reilly, Federal 

Preemption of State and Local Law: Legislation, Regulation 
32

and Litigation 72 (2006) (stating that conflict preemption 

analysis “requires ... attention to the facts of each case”). 

It may be that, in the maintenance of the drainage 

facilities that are under and immediately adjacent to the 

portion of the track in question, CSX is unable, through 

reasonable means, to prevent the flow of storm water onto 

MD Mall‟s property. Again, since the railroad managed for 

years to deal with its drainage without affecting the Mall, one 

wonders how it can have become an unreasonable burden 

now, but we have virtually no factual record on the issue and 

so cannot definitively address it. The District Court is in a 

better position to make the necessary factual inquiry, and we 

will therefore remand for the development of an appropriate 

record.

14

 

14 Of course, any analysis of conflict preemption 

requires an inquiry into the dictates of the state law in 

question, for if state law does not prohibit a railroad from 

discharging storm water onto an adjoining land under the 

circumstances of this case, there is no conflict of law. 

Because the District Court did not evaluate the underlying 

merits of MD Mall‟s storm water trespass or negligence 

claims, but rather avoided them on FRSA preemption 

grounds, on remand we will allow the District Court to have a 

first pass at those questions. Cf. Strozyk, 358 F.3d at 278 

(reversing district court‟s preemption holding and “leav[ing] 

the issue of whether or not the railroad met its duty of care, 

and the relevant standard, for the District Court and the fact 

finder on remand”).

In addition, we will leave it to the District Court on 

remand to address, if necessary, CSX‟s additional argument 

that MD Mall‟s claims are preempted under the ICCTA, the 
33

IV. Conclusion

For the foregoing reasons, we will vacate the District 

Court‟s order granting summary judgment in CSX‟s favor, 

and will remand the case for further proceedings consistent 

with this opinion.

 

Interstate Commerce Commission Termination Act.

Finally, given our invocation of the public importance 

exception to the waiver doctrine to allow MD Mall to press its 

new argument, MD Mall is estopped from arguing on remand 

that § 213.33 imposes a duty on CSX to prevent storm water 

discharge onto a neighboring property and that CSX failed to 

comply with the supposed standard of care created by that 

duty. Otherwise, we would be allowing MD Mall for the 

third time to “assert[] a position inconsistent with one that [it] 

[had] previously asserted in ... a previous proceeding.” 

Macfarlan, 675 F.3d at 272 (internal quotation marks 

omitted).
MD Mall Associates, LLC v. CSX Transportation

No. 12-1934

RENDELL, Circuit Judge, dissenting.

I dissent from the majority’s opinion because I 

believe its analysis veers from Supreme Court precedent in 

the area of FRSA preemption. When the Mall commenced 

this action in District Court complaining of CSX’s failure 

to maintain its stormwater drainage, it urged that, applying 

the ―coverage‖ test for preemption that the Supreme Court 

established in CSX Transportation, Inc. v. Easterwood, 507 

U.S. 658 (1993), its claims were clearly covered by 49 

C.F.R. § 213.33. Section 213.33 provides:

Each drainage or other water carrying 

facility under or immediately adjacent to the 

roadbed shall be maintained and kept free of 

obstruction, to accommodate expected water 

flow for the area concerned.

The Mall contended that, although the regulation covered 

the subject matter of its state law claims, the claims were 

not preempted because the Clarifying Amendment 

applied.1 That Amendment provides that FRSA does not 

 

1

See, e.g., S.A. 98-99 (―Therefore, based upon the 

clarifying amendment, claims alleging that the railroad 

failed to comply with federal regulations are not preempted 

by the FRSA.‖) (emphasis added), S.A. 110-13, S.A. 160-

61, S.A. 165 (―We are suing under a state law that is 
2

preempt claims for damages if they allege a violation of a 

―[f]ederal standard of care‖ or the railroad’s ―own plan, 

rule, or standard that it created pursuant to a regulation or 

order.‖ 49 U.S.C. § 20106(b)(1)(A)-(B). 

The District Court agreed with the Mall that § 213.33 

covered the subject matter of the Mall’s state law claims,

but held that the Clarifying Amendment did not apply 

because the Mall requested only injunctive relief—not 

damages. Dissatisfied with this result, the Mall now comes 

to our Court with a new approach for gaining an 

injunction. It now contends that § 213.33 does ―not even 

relate to, let alone cover, a railroad’s discharge of 

stormwater onto an adjoining property.‖ (Appellant’s 

Opening Br. at 11.) In other words, it argues the direct 

opposite of what it pleaded and consistently urged below. 

In furtherance of this epiphany, the Mall urges that

CSX’s stormwater is not really a drainage issue that 

§ 213.33 regulates. Rather, it contends that the stormwater

should be viewed as ―flow‖ or ―runoff‖ onto an adjoining 

property. The majority has embraced this argument. I 

conclude, however, that the Mall was right the first time:

§ 213.33 clearly covers the subject matter of its claims, and 

under Easterwood, that is the only issue that matters. In 

Easterwood, the Supreme Court framed the critical 

preemption FRSA inquiry: does the regulation at issue 

―substantially subsume the subject matter of the relevant 

state law[?]‖ 507 U.S. at 664. Here, it does. The Mall’s 

position on appeal ignores Easterwood’s command, and is 

 

identical to federal regulations, they both say the same 

thing . . . thou shall maintain your water.‖).
3

flawed from a physical, analytical, and practical 

standpoint. 

First, an examination of the physical layout of the 

area reveals that the hillside leading to the Mall’s

property—the site of the alleged negligence—is

immediately adjacent to the roadbed.2 A picture tells a 

thousand words, and the photo attached to this opinion

demonstrates the requisite proximity.3 Can there be any 

doubt that the regulation ―covers‖ the drainage in this area? 

I think not.

Second, analytically, the Mall’s own characterization 

of CSX’s misconduct belies its assertion that § 213.33 does 

not cover CSX’s conduct. The Mall repeatedly and 

consistently articulates CSX’s conduct as its failure to 

 

2

―Roadbed‖ refers to ―the area under and adjacent to the 

tracks.‖ Anderson v. Wis. Cent. Transp. Co., 327 F. Supp. 

2d 969, 979 n.11 (E.D. Wis. 2004); accord Mo. Pac. R.R. 

v. R.R. Comm’n of Tex., 948 F.2d 179, 182 (5th Cir. 1991). 

―Immediately adjacent‖ is ten to fifteen feet. Anderson, 

237 F. Supp. 2d at 980; Hadley v. Union Pacific R. Co., 

No. Civ.A. 02–1901, 2003 WL 21406183, at *2 (E.D. La. 

June 16, 2003). 

3 Ditch lines abut and run parallel to the roadbed. When it 

rains, water flows from the roadbed into the ditches. The 

Mall contends that the drainage problem is the result of 

CSX’s failure to maintain the ditch that borders the Mall’s 

property. (A. 119 (Compl. ¶¶ 10-11).) Although the 

parties do not provide the dimensions of the area, it is clear 

that the ditch line is immediately adjacent to the roadbed. 
4

manage the storm water on its property4—exactly what 

§ 213.33 requires CSX to do. According to the Mall and 

the majority, however, the fact that § 213.33 addresses the 

very conduct that the Mall contests does not matter in 

evaluating whether the regulation covers the subject matter 

of the Mall’s claims. Rather, they contend that what 

matters is the result—here, runoff onto the Mall’s property. 

This position is captured in the Mall’s Complaint: the 

continuing trespass claim is the result of CSX’s ―failing to 

properly control its stormwater and maintain the CSX 

Property so that its stormwater does not overflow onto 

MacDade’s property.‖ (A. 123 (Compl. ¶ 30).) But, the 

―flow‖ or ―runoff‖ onto the Mall’s property is not the 

negligent act complained of, it is the result. If we were to 

adopt the majority’s position, we would be holding that 

even if FRSA clearly covers the conduct of a railroad, such 

that the matter is preempted under Easterwood, a claimant 

could, nonetheless, assert a claim for any resulting or 

consequential injury that flows from the covered conduct. 

 

4

See Am. Compl. at A. 117, A. 121, A. 123; MD Mall’s 

Mem. of Law in Supp. of MD Mall’s Motion for Summ. J. 

at S.A. 71, S.A. 82, S.A. 90 (―CSX is clearly not 

accommodating the expected water flow from its property, 

as required under Section 213.33.‖), S.A. 91 (―CSX has 

failed to properly control its water run-off from illegally 

discharging on to [sic] the Mall Property.‖); MD Mall’s 

Response in Opp. to CSX’s Motion for Summ. J. at S.A.

93-94 (―CSX should be managing its stormwater so that it 

drains without causing damage to the Mall property.‖), 

S.A. 99; Appellant’s Br. at 14, 29 (―[T]he stormwater 

problem arose on [CSX’s] property and it controls its 

property.‖); Appellant’s Reply Br. at 26. 
5

This position renders preemption toothless and cannot 

withstand analytic scrutiny. Simply put, that CSX’s failure 

to comply with § 213.33 leads to a result that harms 

another is not a basis to ignore the preemptive effect of the 

regulation and permit a claim to be brought for that harm.5 

The Mall and the majority arrive at this conclusion by 

focusing on what they believe to be the intent of the 

regulation. The majority reasons: ―There is no indication 

whatsoever that it was intended to address storm water 

discharge onto a neighboring property, which is the harm 

alleged by MD Mall.‖ See Majority Op. at 23 (emphasis 

added). However, this approach is directly contrary to the 

Supreme Court’s unequivocal instruction in Easterwood. 

There, the Supreme Court stated that in determining the 

preemptive effect of a regulation, the only question is 

whether the regulation covers the subject matter. 507 U.S.

at 664. The Supreme Court explicitly stated that the intent 

of the regulation was not to be considered: ―Section 4346

does not, however, call for an inquiry into the Secretary’s 

purposes, but instead directs the courts to determine 

whether regulations have been adopted that in fact cover 

the subject matter of train speed.‖ Id. at 675. Here, if we 

substituted ―storm water drainage adjacent to the roadbed‖ 

 

5

If this were not the case, the Clarifying Amendment’s 

allowance of claims for resulting harm would have been 

unnecessary. The Clarifying Amendment applies to claims 

for damages for actual harm, and the District Court 

correctly held that injunctive relief is not allowed. That is 

the province of the Secretary of Transportation, as I note 

below. 

6 Referring to FRSA’s preemption provision. 
6

for ―train speed‖, it is clear that the necessary ―coverage‖ 

exists. The Secretary has adopted a regulation that 

explicitly addresses ―drainage . . . immediately adjacent to 

the roadbed,‖ and the Mall is claiming that under state law, 

CSX is negligent in how it handles its stormwater adjacent 

to the roadbed. If we divert our attention from the

―coverage‖ of this regulation—of which there can be no 

doubt here—we disregard the preemption analysis required 

under Easterwood.

7

 

7

The majority’s reading of the analysis in Easterwood as 

concerned with the harm that the regulation was intended 

to prevent, see Majority Op. at 23 n.11, is incorrect. 

Easterwood involved an inquiry into whether a very 

specific regulation—setting train speed caps—should be 

read expansively to cover, i.e. subsume, the subject matter 

of train speed safety. The Supreme Court was determining 

the scope of the regulation—not, as the majority posits, 

―the harm sought to be avoided by the relevant regulation.‖ 

Majority Op. at 23 n.11. These are different inquiries. The 

Supreme Court adopted an expansive view of the scope of 

the regulation, based on an examination of what was 

considered in adopting the regulation—overall safety, not 

merely speed caps. 507 U.S. at 674-75. Interestingly, 

however, the majority seems to agree with my view that 

once the Supreme Court in Easterwood concluded that the 

scope of the regulation was train speed safety, it held that it 

did not need to delve into the harms that the regulations 

were intended to avoid, namely derailments. See Majority 

Op. at 23 n.11. The nature of the harm is, therefore, 

irrelevant in determining ―coverage.‖ That leads 

inexorably to the conclusion that, here, once we have 

concluded that the scope of the regulation covers the 
7

The sparse case law discussing § 213.33 is consistent 

with this reasoning. For example, in Rooney v. City of 

Philadelphia, property owners brought suit against 

AMTRAK alleging that runoff and drainage problems 

resulted in flooding that ―caus[ed] extensive damages to 

Plaintiffs’ properties and businesses.‖ 623 F. Supp. 2d 

644, 648 (E.D. Pa. 2009). The court concluded that FRSA 

regulations, including 49 C.F.R. § 213.33, governed, 

among other things, ―[d]rainage requirements‖, and as a 

result, ―cover[ed] the subject matter at issue.‖ Id. at 666. 

In Black v. Baltimore & Ohio Railroad Co., plaintiffs 

initiated suit against the railroad alleging that ―pumping 

actions in low joints, lack of good crossties, ballast and 

poor drainage‖ created muddy conditions that were 

hazardous to trainmen. 398 N.E.2d 1361, 1362 (Ind. Ct. 

App. 1980). The court held that although there was no 

―specific regulation dealing with muddy conditions,‖ 

plaintiff’s claims were preempted because FRSA 

regulations, including 49 C.F.R. § 213.33, covered the 

―conditions that are alleged to have contributed to the‖ 

muddy conditions. Id. at 1363. Recently, in Miller v. 

 

proper management of stormwater drainage adjacent to the 

roadbed—which is what the Mall contends is the cause of 

its problem—we should not consider the assertion that the 

regulation was aimed at the integrity of the tracks, not 

runoff. Had Easterwood been decided along the lines that 

the Mall and the majority urge, the Court would have 

concluded that because the speed cap was aimed at 

preventing derailments, not collisions with automobiles at 

grade crossings, the claim would not be preempted. As we 

know, that reasoning was not only not adopted by the 

Supreme Court—it was explicitly rejected.
8

SEPTA, the court, citing the clear mandate of Easterwood, 

went so far as to conclude that a plaintiff’s claim was 

preempted under § 213.33 where the railroad’s poorly 

maintained railroad bridge obstructed the flow of a stream 

and caused the stream to flood the plaintiff’s property. No. 

1876 C.D.2011, 2013 WL 830715 (Pa. Commw. Ct. Mar. 

7, 2013). Here, we have a much clearer case of 

―coverage.‖ The Mall’s claims arise directly from an 

alleged drainage problem that is immediately adjacent to 

the tracks.

8

 

Further, the Mall’s and the majority’s position that a 

court may dictate how a railroad handles its stormwater 

drainage runs afoul of FRSA’s statutory scheme. FRSA 

states that the Secretary of Transportation has the 

―exclusive authority‖ to ―request an injunction for a 

violation of a railroad safety regulation.‖ 49 U.S.C. 

 

8

The majority does not cite one case that addresses 

§ 213.33. In discussing whether the regulation ―covers‖ 

the subject matter of the Mall’s claims, the majority cites 

cases where the regulation ―merely touched upon‖ the 

subject matter of a plaintiff’s claims or cases that did not 

reach the issue in the fact pattern before this court. The 

majority relies heavily on Emerson v. Kansas City 

Southern Railway Company, 503 F.3d 1126 (10th Cir. 

2007). That case is inapposite. There, the Tenth Circuit 

Court of Appeals addressed ICCTA preemption—not 

FRSA preemption—and analyzed whether the ―regulation 

of rail transportation‖ covered the railroad’s discarding old 

railroad ties into a drainage ditch. The issue of coverage is 

much clearer here, as § 213.33 actually regulates drainage. 
9

§ 20111(a)(2). The scope of the work to be done to 

remedy the condition at the CSX roadbed, berm, and 

adjacent hillside is the concern of the Secretary. The 

proposition that a court should refrain from involving itself 

in that subject matter is what preemption is all about. The 

consistency, uniformity, and safety concerns, that underlie 

these types of regulations should not be minimized or 

ignored.

Finally, from a practical perspective, there is no 

reason to gut our preemption analysis to provide the Mall 

with a remedy. To the extent the Mall is actually harmed, 

the Mall could proceed under the Clarifying Amendment 

with a request for damages for any property damage that it 

suffers—as it did originally before limiting itself to 

injunctive relief. The Mall could also bring the matter to 

the attention of the Secretary of Transportation, requesting 

that he issue an injunction that compels CSX to comply 

with § 213.33. 

For the foregoing reasons I believe that the Mall’s 

position, which the majority adopts, is flawed. The most 

important reason, however, is that it runs afoul of 

Easterwood’s holding that the key question is whether the 

regulations ―substantially subsume the subject matter‖ of 

the relevant state law. Here, § 213.33 does just that. 

Easterwood is very clear, but the majority’s holding turns 

preemption on its head and will bring about needless 

confusion in our jurisprudence as to the proper preemption 

analysis. I, therefore, respectfully dissent.