related to railroad safety or security until the Secretary of Transportation (with

respect to railroad safety matters), or the Secretary of Homeland Security (with

respect to railroad security matters), prescribes a regulation or issues an order
covering the subject matter of the State requirement. A State may adopt or

continue in force an additional or more stringent law, regulation, or order

related to railroad safety or security when the law, regulation, or order--

(1) is necessary to eliminate or reduce an essentially local safety or security hazard;

(2) is not incompatible with a law, regulation, or order of the United States

Government; and(3) does not unreasonably burden interstate commerce.

The ICC has described what it would do if Des Plaines were to file a petition. The
one thing that the ICC has not said they would do is to determine whether or not the project
which requires the building of two new bridges is “necessary to eliminate or reduce an
essentially local safety or security hazard.”

This may be an odd omission because what may be alleged, and assumed to be true if
it is, is that “the proposal was primarily a highway project with little, if any, benefit to [the
railroads].” The complaint does not squarely allege that the project has no amelioration of a
local safety or security hazard or that it is incompatible with federal rules or that it
unreasonably burdens interstate commerce. So I do not view the ICC as taking the position
that it could, eventually, order the cost of the bridges to be borne by the railroads without
determining that such an order meets the requirements of § 20106.

It is my opinion that § 20106 precludes the declaratory and injunctive relief sought
here. J agree with the railroads that it is unlikely that construction of the bridges could be
taxed to them because it is unlikely that what is at stake here is a local safety or security

hazard within the meaning of the law. But, by passage of § 20106, Congress has authorized

agencies like the ICC to hear and decide the question. What is or is not an essentially local



There is a real dispute here between the railroads and Des Plaines. It is true that the
road project has had an off-again, on-again history since the 1970s. In this latest round the
project got fairly far along, plans were completed. But IDOT would not fund the project
without the railroad money and has threatened to withdraw its commitment to fund one-third
of the bridge’s cost unless the railroads ante up. Declaratory relief in such circumstances is
not precluded. What, at a very minimum, the railroads seek to prevent is the cost and bother
of going through a pointless ICC proceeding. This is relief to which they are entitled if the
ICC’s authority has been preempted.

The ICC says there is no preemption. Its authority is based on 625 ILCS 5/18c-7401
which gives the ICC “power...to require the reconstruction...of any crossing...of any railroad
across any highway...by overhead structure...whenever the Commission finds...that such
reconstruction...is necessary to preserve or promote the safety or convenience of the public...”

49 U.S.C. § 10501 says of the Surface Transportation Board that

(b) The jurisdiction of the Board over--

SR aR

(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...is exclusive.
Except as otherwise provided in this part, the remedies provided under this part
with respect to regulation of rail transportation are exclusive and preempt the
remedies provided under Federal or State law.

Congressional policy underlying this provision was set forth in 49 U.S.C. § 20106
which stated:
Laws, regulations, and orders related to railroad safety and laws, regulations,

and orders related to railroad security shall be nationally uniform to the extent
practicable. A State may adopt or continue in force a law, regulation, or order


hazard is a question of fact and nothing in the federal law precludes the ICC from deciding it
in the first instance.
The motion to dismiss is granted.

ENTER:

BS

Mes |B. Zagel a\
United States Digtrict Judge

DATE: Nov 10 2003



‘Minute Order Fore (06/97)

5

United States District Court, Northern District of Illinois

Noms of Asiged Jue James B. Zagel Sig Ju Other

CASE NUMBER 03 C555 DATE 11/10/2003
CASE UNION PACIFIC RR CO. vs. CITY OF DES PLAINES, ET AL
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented]

MOTION:
DOCKET ENTRY:
ql) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Oo Answer brief to motion due___. Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at.
(6) im} Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) Oo Trialfset for/re-set for] on at
(8) oO (Bench/Jury trial] [Hearing] held/continued to at
(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CO Local Rule 41.1 C)FRCP41(a)(1) OO FRCP41(a)(2).
ao [Other docket entry] Enter amended memorandum opinion and order regarding motion to
dismiss.
al of (For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
No notices required Number
number of notices
Notices mailed by judge’s staff.
; NOV 17 2003
Notified counsel by telephone ate docketed
wv | Docketing to mail notices.
Mail AO 450 form. biog LMAEsig-s'n dockebog fats |
Copy to judge/magistrate judge. ‘

NOV 1 7 2088

courtroom OP AR date mailed notice
DW deputy’s
initials ian ‘
received iit
centtaf Cistes Office mailing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Union Pacific Railroad Company, a
Delaware corporation,

Plaintiff,

No. 03 C 0555
v. Judge James B. Zagel

The City of Des Plaines, et al.,

Defendants.

AMENDED MEMORANDUM OPINION AND ORDER

Wisconsin Central and the Union Pacific, two railroads, sued the City of Des Plaines
and the commissioners of the Illinois Commerce Commission. The railroads seek a
declaration that they are not responsible for changing some aspects of a viaduct-the railroad
bridge- over which their trains run.

The railroad bridge is a span over U.S. 14 as the road winds its way through Des
Plaines. The Illinois Department of Transportation (and the City of Des Plaines) would like
to make Route 14 straighter to improve the flow of traffic, as would anyone, such as I, who
has ever encountered that particular S curve. To do this, they need to have the railroad
bridge replaced with two new bridges. They want the railroads to pay.

Before the new bridge proposal was presented, there had been debris falling from the
railroad bridge, and Des Plaines had sought relief at the Commerce Commission. The

railroad agreed to perform work to correct the problem. Along came the new proposal from


IDOT which contemplated that IDOT would pay one-third of the cost of the bridge while the
railroads would pay two-thirds.

The Union Pacific took the position that the proposal was primarily a highway project
with no real benefit to the railroad. The existing railroad bridge had twenty years of life left
and served well enough for railroad operations. Des Plaines demurred and said it would
amend its petition before the ICC to request that ICC order the railroads to bear the whole
cost of replacement. The ICC denied leave to amend saying that if the issue was to be
addressed, a new petition would have to be filed.

The railroads want a declaration that they are not to bear the costs and an injunction
against Des Plaines precluding the filing of a petition.

I think it is fair to say that Des Plaines would be satisfied if the issue were addressed
by this court or by the ICC. What Des Plaines does not want is to begin a proceeding before
the ICC, spend a lot of time with it only to be told that the ICC has no authority to act in the
matter. This possibility exists because the railroads say that jurisdiction over this issue lies in
the Surface Transportation Board and nowhere else citing 49 U.S.C. § 10501 (b).

The Commissioners say there is no case or controversy here because there is no matter
pending before it. They also contend that their authority is not preempted by federal law.

Des Plaines has filed here a draft of the petition they would file before the ICC if the
bridge question cannot be resolved here. There is no potential interference with an ongoing

state administrative proceeding because all parties agree there is no such proceeding.