Filed 8/5/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

----

BNSF RAILWAY COMPANY et al.,

Petitioners,

v.

PUBLIC UTILITIES COMMISSION,

Respondent;

CITY OF SAN CLEMENTE,

Real Party in Interest.

C072746

(P.U.C. Dec. No. 12-08-028)

ORIGINAL PROCEEDING. To review a decision of the Public Utilities 

Commission. Decision annulled.

Sims Law Firm, Michael E. Murphy, and Selim Mounedji for Petitioners.

Frank R. Lindh, Helen W. Yee, and Stacie Castro for Respondent.

Goodin, MacBride, Squeri, Day & Lamprey, Michael B. Day, Suzy Hong, Thomas 

J. MacBride, Jr., and Megan Somogyi for Real Party in Interest.
2

This writ of review proceeding presents the question of whether the Public 

Utilities Commission (the commission) has the authority to order railroads to stop using 

locomotive-mounted horns at certain pedestrian rail crossings in the City of San 

Clemente (the city). We conclude the answer to that question is “no,” because in Public 

Utilities Code section 76041the Legislature has commanded that an audible warning 

device mounted on the train must be sounded at every rail crossing in the state, except 

those within federally established quiet zones. Because the pedestrian crossings at issue 

here are not within a federally established quiet zone, a train horn must be sounded at 

those crossings, and the commission has no authority to order otherwise. Accordingly, 

we will set aside the commission‟s decision to the contrary.

FACTUAL AND PROCEDURAL BACKGROUND

In the city, a railroad track separates the beach from the bluff on which the 

residential and commercial areas of the city are located. (Matter of the Application of the 

City of San Clemente (2004) Cal. P.U.C. Dec. No. 04-05-053, p. 1.) The track is 

presently used by petitioner BNSF Railway Company (BNSF) in the operation of freight 

trains and by petitioner National Railroad Passenger Corporation (Amtrak) in the 

operation of passenger trains. (We will refer to petitioners BNSF and Amtrak jointly as 

“the railroads.”)

Before 2004, access across the railroad track to and from the beach was essentially 

uncontrolled; beachgoers would walk up and down the bluff on informal trails and cross 

the track at virtually any point they chose. An effort to develop a more regular trail and 

safer crossings resulted in the San Clemente Pedestrian Beach Trail. Part of the overall 

plan for the beach trail was the San Clemente Beach Safety Enhancement Project, which 

 

1 Undesignated statutory references are to the Public Utilities Code.
3

included protective barriers, undercrossings, and at-grade crossings2 and which was 

subject to the approval of the commission. The project, as approved by the commission 

in May 2004, coordinated the new beach trail with the improvement of two existing atgrade pedestrian crossings, the construction of four new at-grade pedestrian crossings, 

and the construction or improvement of four pedestrian undercrossings, “channeling 

pedestrians to the approved crossings through the use of vegetative barriers and 

fencing.”3

While the project the commission approved increased public safety along the 

three-mile stretch of beach, the project also resulted in significant complaints regarding 

the noise of the trains transiting the area, because approximately 50 trains per day travel 

that stretch of track, and the trains blow their horns at all seven of the at-grade pedestrian 

crossings. Accordingly, in August 2011 the city filed an application with the commission 

asking for “authority and approval . . . to alter and improve [the] seven existing San 

Clemente Beach Trail At-Grade Crossings.” In particular, the city sought approval to 

“[p]rovide an Audible Warning System (AWS) as a Supplemental Safety Measure at each 

Trail Crossing to be utilized during non-emergency conditions in lieu of train-mounted 

warning horns . . . in conjunction with other additions, alterations and improvements to 

the safety features of the Trail Crossings.” (Italics added.) In its application, the city 

asserted that “[t]he AWS, implemented at the seven Trail Crossings, would replace and 

eliminate the routine train horn warnings that currently intrude on residents who live 

adjacent to the Trail Crossings . . . .” In support of its application, the city argued that 

 

2 “An „at-grade‟ crossing is one [where the railroad track] physically crosses the 

road at street level.” (Santa Clara Valley Transportation Authority v. Public Utilities 

Com. (2004) 124 Cal.App.4th 346, 351, fn. 3.)

3 There is also one private at-grade crossing in the area that was not subject to the 

2004 proceeding before the commission.
4

under a complex interplay of certain California statutes and federal regulations, the 

commission had the authority to approve the use of wayside horns (that is, horns mounted 

at the crossings) instead of train horns at the pedestrian trail crossings.4

In September 2011, the railroads filed a protest and response to the city‟s 

application, asserting that “because California state statutes require railroads to use 

locomotive mounted horns in advance of . . . pedestrian railroad crossings, the 

[commission] has no statutory authority to approve an automated wayside horn system

. . . as a substitute for locomotive mounted horns, and the [commission] has no 

jurisdiction to order railroads to stop using locomotive mounted horns as required by 

California state statutes.”

In February 2012, the city moved for an interim ruling from the commission on 

whether the commission had the authority to approve the city‟s request to use wayside 

horns in lieu of train horns. An administrative law judge (ALJ) granted that motion, and 

the parties briefed the jurisdictional issue.

In July 2012, the ALJ issued his proposed decision concluding that the 

commission has jurisdiction to consider approving the use of wayside horns instead of 

train horns at pedestrian rail crossings. The commission adopted that decision as its own 

in August 2012, effective immediately (Decision 12-08-028). Within 30 days, the 

railroads filed an application for rehearing to which the city responded, but the 

commission did not act on that application, and thus it was deemed denied after 60 days. 

(§ 1733, subd. (b).)

 

4

In its application, the city reported that it had already “attempted to coordinate 

efforts to establish a federal Quiet Zone,” but “[d]ue to the location of the Trail Crossings 

at issue in this Application, they are not eligible for inclusion in a Quiet Zone.”
5

In November 2012, the ALJ issued a scoping memo and ruling setting an 

evidentiary hearing for January 2013 and the final decision for April 2013. In December 

2012, the railroads commenced the present proceeding by filing a timely petition for a 

writ of review of the commission‟s jurisdictional decision in this court. We issued the 

writ in February 2013.

DISCUSSION

The issue in this case is whether the commission has the authority to prohibit 

trains from using their horns at pedestrian rail crossings, in favor of audible warning 

signals mounted at the crossings, where those crossings are not located in a federally 

established quiet zone. The railroads contend the commission does not have that 

authority. We agree.

I

Sources And Limits Of The Commission’s Authority

We begin with the provisions of our state Constitution that govern public utilities, 

which are found in article XII. Section 3 of that article provides, as relevant here, that 

“[p]rivate corporations and persons that own, operate, control, or manage a line, plant, or 

system for the transportation of people or property . . . , and common carriers, are public 

utilities subject to control by the Legislature.” Under this provision, “all railroad carriers 

[are] subject to legislative control.” (City of Union City v. Southern Pac. Co. (1968) 

261 Cal.App.2d 277, 278.) Section 1 of article XII provides for the composition of the 

commission, and section 4 gives the commission the power to “fix rates and establish 

rules for the transportation of passengers and property by transportation companies” 

(among other things). Section 5 of the article then provides that “[t]he Legislature has 

plenary power, unlimited by the other provisions of this constitution but consistent with 

this article, to confer additional authority and jurisdiction upon the commission. . . .”
6

The Legislature exercised this power when it enacted sections 1201 and 1202 of 

the Public Utilities Code, “which are . . . broadly worded grants of power to the 

[commission] over railroad crossings in general.” (Santa Clara Valley Transportation

Authority v. Public Utilities Com., supra, 124 Cal.App.4th at p. 351.) Section 1201 gives 

the commission the power to permit the constructions of crossings of a “public road, 

highway, or street” and “the track of any railroad corporation.” Subdivision (a) of section 

1202 further provides in relevant part that the commission has the exclusive power “[t]o 

determine and prescribe the manner, including the particular point of crossing, and the 

terms of installation, operation, maintenance, use, and protection of . . . each crossing of a 

public or publicly used road or highway by a railroad.”5

Even more broadly, the Legislature has authorized the commission to “supervise 

and regulate every public utility in the State and [to] do all things, whether specifically 

designated in [the Public Utilities Act] or in addition thereto, which are necessary and 

convenient in the exercise of such power and jurisdiction.” (§ 701.) “Additional powers 

and jurisdiction that the commission exercises, however, „must be cognate and germane 

to the regulation of public utilities . . . .‟ ” (Consumers Lobby Against Monopolies v. 

Public Utilities Com. (1979) 25 Cal.3d 891, 905-906.) More important, “[p]ast decisions 

of [our Supreme C]ourt have rejected a construction of section 701 that would confer 

upon the Commission powers contrary to other legislative directives, or to express 

restrictions placed upon the Commission‟s authority by the Public Utilities Code.” 

(Assembly v. Public Utilities Com. (1995) 12 Cal.4th 87, 103.)

 

5 All of the parties here assume that the pedestrian paths that cross the railroad track 

at issue in this case qualify as public roads, highways, or streets within the meaning of 

sections 1201 and 1202, and we proceed on the same assumption.
7

Thus, however broad the scope of the commission‟s authority over railroad 

crossings may be, the commission does not have the authority to contravene the 

expressed will of the Legislature in this area. In the railroads‟ view, however, that is 

exactly what the commission will be doing if the commission approves the city‟s 

application in this case and orders the railroads to stop sounding their locomotive horns at 

the pedestrian rail crossings along the city‟s beach trail. According to the railroads, 

section 7604 “mandates the use of locomotive-mounted audible warning devices for 

trains approaching any and all railroad grade crossings within the State of California, 

including each of the San Clemente pedestrian grade crossings, and it does not give the 

Commission authority to restrict their use.”

II

The History Of Section 7604

A. 1861 to 2001

Because the history of section 7604 will be relevant to our evaluation of the 

railroads‟ argument -- or, more specifically, to the counter-arguments offered by the city 

and the commission -- we begin there. Since 1861, the Legislature has expressly required 

trains to sound train-mounted audible warnings at railroad crossings. In that year, as part 

of “[a]n Act to provide for the Incorporation of Railroad Companies, and the 

management of the affairs thereof, and other matters relating thereto” (Stats. 1861, ch. 

532, p. 607), the Legislature mandated that “[a] bell, of at least twenty pounds‟ weight, 

shall be placed on each locomotive engine, and be rung at a distance of at least eighty 

rods [i.e., one-quarter mile] from the place where the railroad shall cross any street, road, 

or highway, and be kept ringing until it shall have crossed such street, road, or highway, 

under a penalty of one hundred dollars for every neglect . . . .” (Id., § 41, p. 623.) In 

1872, that statute was codified as section 486 of the Civil Code, which remained in place 

until 1951, when, as part of the establishment of the Public Utilities Code (Stats. 1951, 

ch. 764, p. 2025), the provision became section 7604 of that code. (Stats. 1951, ch. 764, 
8

p. 2184.) Prior to that, in 1937, the Legislature had amended the provision to permit the

use of a steam whistle, air siren, or air whistle instead of a bell.6 (Stats. 1937, ch. 274, 

§ 1, p. 588.)

In 2000, the first significant change in 139 years to the provision codified as

section 7604 was proposed as Senate Bill No. 1491. As a Senate committee analysis of 

the bill explained, the City of Roseville had “asked the [commission] for permission to 

create a pilot project to install an automated horn system at two railroad crossings as an 

alternative to having trains sound their whistles as they approach[ed] the crossings.” 

(Sen. Com. com., Analysis of Sen. Bill No. 1491 (1999-2000 Reg. Sess.) as amended 

Apr. 24, 2000 [hereafter, Analysis of Sen. Bill No. 1491].) The committee analysis noted 

that “[t]his automated horn system, known as a „wayside horn,‟ has the potential to 

reduce noise pollution because the horns are stationary, located at the crossing, and can 

be directed down the street - as opposed to a train whistle, which sounds for about a 

quarter mile as a train approaches a crossing.” (Ibid.) The analysis further noted that the 

commission had denied Roseville‟s “request for a pilot project because it found the 

project ran contrary to state law.” (Ibid.)

At the time, the committee analysis explained, “[s]ome cities, including 

Sacramento, ha[d] established „quiet zones‟ in which train whistles [we]re either banned 

or restricted.” (Analysis of Sen. Bill No. 1491.) Meanwhile, “[t]he Federal Railroad 

Administration (FRA), the federal agency responsible for railroad safety” had conducted 

a “study of Florida‟s train whistle ban, which found that trains not sounding their whistles 

were far likelier to have a collision than trains which did sound their whistles.” (Ibid.) In

response to that study, the FRA was “formulating draft regulations to limit „quiet zones‟ 

 

6

In 1981, the Legislature revised section 7604 to change the distance mentioned in 

the statute from 80 rods to 1,320 feet (Stats. 1981, ch. 761, § 1, p. 2967), although those 

distances are, in fact, the same -- one-quarter mile.
9

to areas only where supplementary safety measures [we]re installed, such as four 

quadrant gates.” (Ibid.) In fact, the Federal Railroad Administration had begun the 

process of drafting rules regarding “the use of locomotive horns at public highway-rail 

grade crossings” earlier in 2000 because that “rulemaking was mandated by Public Law 

103-440, which added section 20153 to title 49 of the United States Code. Th[at] statute 

require[d] the Secretary of Transportation (whose authority in this area has been 

delegated to the Federal Railroad Administrator under 49 CFR 1.49) to issue regulations 

that require the use of locomotive horns at public grade crossings, but g[ave] the 

Secretary the authority to make reasonable exceptions.” (71 Fed.Reg. 47614 (Aug. 17, 

2006).)

As enacted in August 2000, Senate Bill No. 1491 modified sections 1202 and 

7604 to authorize certain pilot projects to test the use of wayside horns in California in 

lieu of train-mounted bells or whistles. (Stats. 2000, ch. 263, pp. 2437-2440.) 

Specifically, the Legislature added subdivision (d) to section 1202, giving the 

commission the following additional authority:

“(d)(1) To authorize on an application-by-application basis and supervise the 

operation of pilot projects to evaluate proposed crossing warning devices or new 

technology at designated crossings, with the consent of the local jurisdiction, the affected 

railroad, and other interested parties, including, but not limited to, represented railroad 

employees.

“(2) (A) The Legislature finds and declares that for the communities of the state 

that are traversed by railroads, there is a growing need to mitigate train horn noise 

without compromising the safety of the public. Therefore, it is the intent of the 

Legislature that the commission may authorize pilot projects, after an application is filed 

and approved by the commission in at least the communities of Roseville and Lathrop to 

test the utility and safety of stationary, automated audible warning devices as an 

alternative to trains having to sound their horns as they approach highway-rail crossings.
10

“(B) In light of the pending proposed ruling by the Federal Railroad 

Administration on the use of locomotive horns at all highway-rail crossings across the 

nation, it would be in the best interest of the state for the commission to expedite the pilot 

projects in order to contribute data to the federal rulemaking process regarding the 

possible inclusion of stationary, automated warning devices as a safety measure option to 

the proposed federal rule.” (Stats. 2000, ch. 263, § 1, p. 2438.)

Consistent with the creation of these pilot projects, the Legislature added a new 

subdivision (a)(3) to section 7604, as follows:

“(3) (A) The ringing of the bell or the sounding of the steam whistle, air siren, or 

air whistle is not required when approaching a railroad crossing that has a permanently 

installed audible warning device authorized by the commission that sounds automatically

when an approaching train is at least 1,320 feet from the place where the railroad crosses 

any street, road, or highway, and that keeps sounding until the lead locomotive has 

crossed the street, road, or highway.

“(B) The operator of the locomotive may ring the bell or sound the steam whistle, 

air siren, or air whistle at crossings equipped as set forth in subparagraph (A).” (Stats. 

2000, ch. 263, § 2, p. 2439)

Thus, the new legislation made it optional for the locomotive operators to sound 

their train-mounted bells or whistles at crossings where the new automated wayside horns 

were installed.

In 2001, section 1202 was further amended to allow the commission to authorize 

additional wayside horn pilot projects in Fremont and Newark, as well as “in any other 

location determined to be suitable by the commission.” (Stats. 2001, ch. 393, § 1, 

p. 3644.) At the same time, the Legislature amended section 1202 to authorize the 

commission to approve a second pilot project involving “supplementary safety measures, 

as defined in Section 20153(a)(3) of Title 49 of the United States Code, for use on rail 

crossings.” (Stats. 2001, ch. 393, § 1, p. 3644.) The referenced federal statute defined a 
11

“supplementary safety measure” as “„a safety system or procedure, provided by the 

appropriate traffic control authority or law enforcement authority responsible for safety at 

the highway-rail grade crossing, that is determined by the Secretary (of Transportation) to 

be an effective substitute for the locomotive horn in the prevention of highway-rail 

casualties.‟ ” (Sen. Com. com., Analysis of Assem. Bill No. 1249 (2001-2002 Reg.

Sess.) as amended Jul. 2, 2001, quoting 49 U.S.C. § 20153(a)(3).) The Legislature, 

however, included a sunset provision relating to these supplementary safety measures, 

specifically providing that no new pilot project of this type “may be authorized after 

January 1, 2003” and requiring the commission to report on the outcome of this pilot 

project by March 31, 2004. (Stats. 2001, ch. 393, § 1, p. 3644; see also Sen. Rules Com., 

Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1249 (2001-2002 

Reg. Sess.) as amended Sept. 6, 2001, p. 2.)

B. 2006

In April 2005, the Federal Railroad Administration published its final rule on the 

use of the locomotive horns at public highway-rail grade crossings. (49 C.F.R. §§ 222.1-

222.59 (2006); 70 Fed.Reg. 21844 (Apr. 27, 2005).) Paragraph (a) of section 222.7 of the 

regulations provided that with the exception of certain crossings within six counties in 

Illinois, “issuance of this part preempts any State law, rule, regulation, or order governing 

the sounding of the locomotive horn at public highway-rail grade crossings.” (49 C.F.R. 

§§ 222.3(c), 222.7(a) & (b), 222.9 (2006) [definition of “Chicago Region”]; 70 Fed.Reg. 

21844, 21888-81889 (Apr. 27, 2005).) Paragraph (a) of section 222.21 of the regulations 

provided that “[e]xcept as provided in this part, the locomotive horn on the lead 

locomotive of a train, lite locomotive consist, individual locomotive, or lead cab car shall 

be sounded when such locomotive or lead cab car is approaching a public highway-rail 

grade crossing.” (70 Fed.Reg. 21844, 21891-21892 (Apr. 27, 2005).) The regulations 

defined a “locomotive horn” as “a locomotive air horn, steam whistle, or similar audible 

warning device . . . mounted on a locomotive or control cab car.” (49 C.F.R. § 222.9
12

(2006); 70 Fed.Reg. 21844, 21890 (Apr. 27, 2005).) Paragraph (a) of section 222.21 of 

the regulations specifically provided for the sounding of the horn “with two long blasts, 

one short blast and one long blast.” (70 Fed.Reg. 21844, 21892 (Apr. 27, 2005).) 

Paragraph (b)(1) of that section dictated when the sounding must begin. (Ibid.) Sections 

222.25 and 222.27 of the regulations provided that the routine sounding of locomotive 

horns was not required at private highway-rail grade crossings or at pedestrian crossings

and that the regulations were not intended to affect state laws regarding the routine 

sounding of locomotive horns at those crossings. (Ibid.) The regulations also provided 

procedures and prerequisites for establishing quiet zones where locomotive horns are not 

required to be routinely sounded at public highway-rail grade crossings. (70 Fed.Reg.

21844, 21891 [definition of “quiet zone”], 21893-21901 [Subpart C of part 222, quiet 

zone regulations] (Apr. 27, 2005).)

In April 2006, following the enactment of the federal regulations, a California 

Assembly bill addressing various railroad safety and maintenance issues was amended to 

include a provision revising section 7604 in response to the new federal regulations. 

(Assem. Bill No. 1935 (2005-2006 Reg. Sess.) as amended Apr. 18, 2006.) In its initial 

form, the amendment to Assembly Bill No. 1935 proposed to include within section 7604 

language taken straight from the federal regulations, including the definition of a 

“locomotive horn.” (Assem. Bill No. 1935 (2005-2006 Reg. Sess.) § 5, as amended 

Apr. 18, 2006 [proposed language of § 7604, subd. (a)(2)].) The bill also proposed to 

include the following language in section 7604 regarding the required use of a 

locomotive horn:

“(b) Except in a quiet zone, a locomotive horn shall be sounded when a 

locomotive is approaching a public highway-rail grade crossing in accordance with 

Section 222.21 of Title 49 of the Code of Federal Regulations.

“(c) Except in a quiet zone, a locomotive horn shall be sounded when a 

locomotive is approaching a private highway-rail crossing or pedestrian crossing in the 
13

same manner and circumstances that the locomotive horn would be required to be 

sounded pursuant to subdivision (b).” (Assem. Bill No. 1935 (2005-2006 Reg. Sess.) § 5, 

as amended Apr. 18, 2006 [proposed language of § 7604, subds. (b) & (c)], italics 

deleted.)

With regard to this amendment, the Legislative Counsel‟s Digest explained as 

follows:

“Pursuant to the FRSA, the Secretary of Transportation has adopted regulations to 

provide for safety at public highway-rail grade crossings, as defined, by requiring use of a 

locomotive horn, as defined, except in quiet zones, as defined, established and maintained 

in accordance with those regulations. These regulations expressly preempt any state law, 

rule, regulation, or order governing the sounding of locomotive horns at public highwayrail grade crossings, but are not intended to affect, nor do they preempt, any state law, 

rule, regulation, or order governing the sounding of locomotive horns at private highwayrail grade crossings, as defined, or pedestrian crossings, as defined.

“[¶] . . . [¶]

“This bill would delete existing state law relative to the equipping and sounding of 

locomotive bells and would instead require that a locomotive horn be sounded when a 

locomotive is approaching a public highway-rail grade crossing in accordance with the 

regulations adopted by the Secretary of Transportation, except in a quiet zone. The bill 

would additionally require that a locomotive horn be sounded when a locomotive is 

approaching a private highway-rail crossing or pedestrian crossing in the same manner 

and circumstances that the locomotive horn would be required to be sounded when a 

locomotive is approaching a public highway-rail grade crossing.” (Legis. Counsel‟s Dig., 

Assem. Bill No. 1935 (2005-2006 Reg. Sess.) as amended Apr. 18, 2006, italics deleted.)

In May 2006, the provision in Assembly Bill No. 1935 revising section 7604 in 

response to the federal regulations was completely rewritten. (Assem. Bill No. 1935 

(2005-2006 Reg. Sess.) § 3, as amended May 26, 2006.) The new proposed language did 
14

not incorporate the definition of a locomotive horn from the federal regulations or 

specifically provide that the sounding of a locomotive horn was required. Instead, the 

new language read as follows:

“(a) (1) Except as provided in paragraph (3), a bell, siren, horn, whistle, or similar 

audible warning device shall be sounded at any public crossing in accordance with 

Section 222.21 of Title 49 of the Code of Federal Regulations.

“(2) Except as provided in paragraph (3), a bell, siren, horn, whistle, or similar 

audible warning device shall be sounded, consistent with paragraph (1), at all rail 

crossings not subject to the requirements of Subpart B (commencing with Section 

222.21) of Part 222 of Title 49 of the Code of Federal Regulations, including private 

highway-rail grade crossings and pedestrian crossings.

“(3) A bell, siren, horn, whistle, or similar audible warning device shall not be 

sounded in those areas designated and approved by the Federal Railroad Administration 

as quiet zones pursuant to Subpart C (commencing with Section 222.33) of Part 222 of 

Title 49 of the Code of Federal Regulations.” (Assem. Bill No. 1935 (2005-2006 Reg. 

Sess.) § 3, as amended May 26, 2006 [proposed language of § 7604, subds. (a)(1)-(3)], 

italics deleted.)

With regard to this changed language, the Legislative Counsel‟s Digest noted as 

follows: “This bill would delete existing state law relative to the equipping and sounding 

of locomotive bells and would instead require that a locomotive horn be sounded when a 

locomotive is approaching a public highway-rail grade bell, siren, horn, whistle, or 

similar audible warning device be sounded at any public crossing in accordance with the 

regulations adopted by the Secretary of Transportation, except in a quiet zone. The bill 

would additionally require that a locomotive horn be sounded when a locomotive is 

approaching a private highway-rail crossing or pedestrian crossing bell, siren, horn, 

whistle, or similar audible warning device be sounded at all rail crossings not subject to 

the requirements of the regulations adopted by the Secretary of Transportation, including 
15

private highway-rail grade crossings and pedestrian crossings, except in a quiet zone, in 

the same manner and circumstances that the locomotive horn would be required to be 

sounded when a locomotive is approaching a public highway-rail grade as required at a 

public crossing.” (Legis. Counsel‟s Dig., Assem. Bill No. 1935 (2005-2006 Reg. Sess.) 

as amended May 26, 2006.)

In August 2006, while Assembly Bill No. 1935 was still pending in the California 

Legislature, the Federal Railroad Administration amended and clarified its final rule 

regarding the use of locomotive horns at highway-rail grade crossings in response to 

petitions for reconsideration and associated letters in support. (71 Fed.Reg. 47614

(Aug. 17, 2006).) As relevant here, sections 222.25 and 222.27 of the regulations were 

revised to preempt state law with respect to private highway-rail grade crossings and 

pedestrian crossings only to the extent that state law required the sounding of a 

locomotive audible warning device at any of those crossings for a period of time or in a 

pattern different from the locomotive horn sounding requirements set forth in section 

222.21. (71 Fed.Reg. at 47619-47620.) As a result, the amended federal regulations 

provide that where state law requires the sounding of a locomotive horn at private 

highway-rail grade crossings and/or pedestrian crossings, the locomotive horn must be 

sounded in accordance with section 222.21. (49 C.F.R. §§ 222.25, 222.27 (2006); 71 

Fed.Reg. 47614, 47638 (Aug. 17, 2006).)

A week after the release of the amended federal rule, the following changes were

made to the language proposed for subdivisions (a)(2) and (a)(3) of section 7604 in 

Assembly Bill No. 1935:

“(2) Except as provided in paragraph (3), a bell, siren, horn, whistle, or similar 

audible warning device shall be sounded, consistent with paragraph (1), at all rail 

crossings not subject to the requirements of Subpart B (commencing with Section 

222.21) of Part 222 of Title 49 of the Code of Federal Regulations, including private 

highway-rail grade crossings and pedestrian crossings.
16

“(3) A bell, siren, horn, whistle, or similar audible warning device shall not be 

sounded in those areas designated and approved by the Federal Railroad Administration

established as quiet zones pursuant to Subpart C (commencing with Section 222.33) of 

Part 222 of Title 49 of the Code of Federal Regulations.” (Assem. Bill No. 1935 (2005-

2006 Reg. Sess.) § 3, as amended Aug. 22, 2006 [proposed language of § 7604, subds. 

(a)(2)-(3)].)

Despite the revisions to sections 222.25 and 222.27 of the federal regulations 

providing for the limited preemption of state law governing private highway-rail grade 

crossings and pedestrian crossings (as described above), the Legislative Counsel‟s Digest 

continued to assert that the federal regulations were “not intended to affect, nor do they 

preempt, any state law, rule, regulation, or order governing the sounding of locomotive 

horns at private highway-rail grade crossings, as defined, or pedestrian crossings, as 

defined.” (Legis. Counsel‟s Dig., Assem. Bill No. 1935 (2005-2006 Reg. Sess.) as 

amended Aug. 22, 2006.)

Assembly Bill No. 1935 was enacted into law on September 30, 2006, without 

further substantive changes to the provisions revising section 7604 in response to the 

federal regulations. Accordingly, in its present form, section 7604 provides as follows:

“(a)(1) Except as provided in paragraph (3), a bell, siren, horn, whistle, or similar 

audible warning device shall be sounded at any public crossing in accordance with 

Section 222.21 of Title 49 of the Code of Federal Regulations.

“(2) Except as provided in paragraph (3), a bell, siren, horn, whistle, or similar 

audible warning device shall be sounded, consistent with paragraph (1), at all rail 

crossings not subject to the requirements of Subpart B (commencing with Section 

222.21) of Part 222 of Title 49 of the Code of Federal Regulations.

“(3) A bell, siren, horn, whistle, or similar audible warning device shall not be 

sounded in those areas established as quiet zones pursuant to Subpart C (commencing 

with Section 222.33) of Part 222 of Title 49 of the Code of Federal Regulations.
17

“(4) This section does not restrict the use of a bell, siren, horn, whistle, or similar 

audible warning device during an emergency or other situation authorized in Section 

222.23 of Title 49 of the Code of Federal Regulations.

“(b) Any railroad corporation violating this section shall be subject to a penalty of 

two thousand five hundred dollars ($2,500) for every violation. The penalty may be 

recovered in an action prosecuted by the district attorney of the proper county, for the use

of the state. The corporation is also liable for all damages sustained by any person, and

caused by its locomotives, train, or cars, when the provisions of this section are not 

complied with.”

III

Application Of Section 7604 To The Present Dispute

A. The Statutory Language

With the current language of section 7604 and the history of the statute in mind, 

we turn to the question raised in this case -- whether section 7604 mandates the use of a 

locomotive-mounted audible warning device for a train approaching a pedestrian rail 

crossing in California that is not in a federally established quiet zone. We conclude it 

does.

Subdivision (a)(1) of section 7604 mandates that, except in a quiet zone 

established pursuant to the federal regulations, “a bell, siren, horn, whistle, or similar 

audible warning device shall be sounded at any public crossing in accordance with 

Section 222.21 of Title 49 of the Code of Federal Regulations.” At the same time, 

subdivision (a)(2) of the statute mandates that, except in a quiet zone established pursuant 

to the federal regulations, “a bell, siren, horn, whistle, or similar audible warning device 

shall be sounded, consistent with paragraph (1), at all rail crossings not subject to the 
18

requirements of Subpart B (commencing with Section 222.21) of Part 222 of Title 49 of 

the Code of Federal Regulations.”7

To the extent the pedestrian crossings at issue here are “public crossings,” by its 

plain language subdivision (a)(1) of section 7604 mandates that an audible warning 

device must be sounded at those crossings “in accordance with Section 222.21 of Title 49 

of the Code of Federal Regulations.” Moreover, to the extent the pedestrian crossings at 

issue here are “not subject to the requirements of Subpart B . . . of Part 222 of Title 49 of 

the Code of Federal Regulations” because they are not public highway-rail grade 

crossings, subdivision (a)(2) of section 7604 likewise mandates that an audible warning 

device must be sounded at those crossings “consistent with paragraph (1)” of subdivision 

(a) of section 7604 -- that is, “in accordance with Section 222.21 of Title 49 of the Code 

of Federal Regulations.”8 Thus, whether the pedestrian crossings at issue here are 

governed by subdivision (a)(1), subdivision (a)(2), or both, section 7604 mandates that an 

audible warning device must be sounded at those crossings in accordance with section 

222.21 of title 49 of the Code of Federal Regulations.

 

7 For ease of reference, we will use the term “audible warning device” as shorthand 

for the statutory phrase “a bell, siren, horn, whistle, or similar audible warning device.”

8 The legislative history of the amendments to section 7604 following the 

promulgation of the federal regulations in 2005, as detailed above, supports the 

conclusion that the Legislature considered private highway-rail grade crossings and 

pedestrian crossings to be “not subject to the requirements of Subpart B (commencing 

with Section 222.21) of Part 222 of Title 49 of the Code of Federal Regulations” because 

prior to the August 2006 amendments to the federal regulations, sections 222.25 and 

222.27 of those regulations expressly provided that the regulations were not intended to 

affect state laws regarding the routine sounding of locomotive horns at those types of 

crossings. In the end, however, it does not matter whether the Legislature intended 

pedestrian crossings to fall under subdivision (a)(1) or (a)(2) of section 7604 because, as 

we note in the text, the requirement of section 7604 is the same in either event -- an 

audible warning device must be sounded at those crossings in accordance with section 

222.21 of title 49 of the Code of Federal Regulations.
19

Of course, this conclusion requires us to determine what it means to sound an 

audible warning device “in accordance with Section 222.21.” By its plain terms, section 

222.21 dictates when a “locomotive horn” must be used at a public highway-rail grade 

crossing. The federal regulations define a “locomotive horn” as “a locomotive air horn, 

steam whistle, or similar audible warning device mounted on a locomotive or control cab 

car.” (49 C.F.R. § 222.9 (2006), italics added.) Paragraph (a) of section 222.21 of the 

regulations specifically provides for the pattern of the sounding of the horn -- “two long 

blasts, one short blast and one long blast.” Paragraph (b)(2)-(3) of the section provides 

for the place where the sounding must begin -- “at least 15 seconds, but no more than 20 

seconds, before the locomotive enters the crossing,” unless the locomotive is traveling in 

excess of 60 miles per hour, in which case the sounding “shall not begin . . . more than 

one-quarter mile . . . in advance of the . . . crossing.” Paragraph (d) of the section 

contains specific provisions for trains that approach a crossing after first stopping in close 

proximity to the crossing. And paragraph (e) of section 222.21 provides that “[w]here 

State law requires the sounding of a locomotive audible warning device other than the 

locomotive horn . . . , the locomotive audible warning device shall be sounded in 

accordance with paragraphs (b) and (d) of this section.”

The railroads argue that “because . . . sections 7604(a)(1) and (a)(2) incorporate 49 

CFR § 222.21 for pedestrian grade crossings, section 7604 clearly requires the use of a 

locomotive-mounted audible warning device” at those pedestrian crossings. (Italics 

added.) In other words, in the railroads‟ view, only the sounding of an audible warning 

device mounted on a locomotive can be considered “in accordance with [s]ection 

222.21.”

The commission argues that “[n]o language in section 7604 requires the use of a 

locomotive or train mounted horn” and that “[t]he terms locomotive horn or train 

mounted horn or any other term embodying the concept of a locomotive or train mounted 

horn simply do not appear anywhere in the language of section 7604.” “Rather,” the 
20

commission argues, “the actual language of section 7604 allows the use of a „bell, siren, 

horn, whistle, or similar audible warning device.‟ ” In a similar vein, the city argues that 

“[t]he clear and unambiguous language of section 7604 requiring the sounding of „a bell, 

siren, horn, whistle, or similar audible warning device‟ at rail crossings contains no 

language limiting such audible warning devices to locomotive-mounted devices,” and the 

railroads “may not, under the guise of statutory construction, attempt to rewrite section 

7604 to include a requirement to use locomotive-mounted audible warning devices where 

none exists.”

The commission and the city are both correct on one very limited point: section 

7604 does not, by its own terms, expressly require the use of an audible warning device 

mounted on a locomotive. But the statute does expressly require the sounding of an 

audible warning device “in accordance with [s]ection 222.21,” and section 222.21 

expressly requires the sounding of a locomotive horn, which by definition means an 

audible warning device mounted on a locomotive or control cab car. (49 C.F.R. § 222.9

(2006).) Neither the commission nor the city explains how the sounding of an audible 

warning device mounted at the crossing, instead of on the locomotive, can be considered 

“in accordance with [s]ection 222.21,” when that section of the federal regulations, by its 

very terms, requires the sounding of an audible warning device mounted on a locomotive.

This gap in the commission‟s (and the city‟s) argument is highlighted by the 

commission‟s contention that “section 7604 merely states that „a bell, siren, horn, whistle, 

or similar audible warning device shall be sounded . . . .‟ ” That is not what section 7604 

says at all. What the statute says is that “a bell, siren, horn, whistle, or similar audible 

warning device shall be sounded . . . in accordance with Section 222.21 of Title 49 of the 

Code of Federal Regulations.” (§ 7604, subd. (a)(1), italics added.) The commission and 

the city make no attempt to explain how this qualifying phrase can reasonably be 

understood not to encompass the express requirement in section 222.21 that what must be 

sounded is an audible warning device mounted on a locomotive. Thus, we conclude that 
21

the statutory language of section 7604 supports only one reasonable conclusion here: the 

Legislature intended to require the sounding of a locomotive-mounted audible warning 

device at pedestrian rail crossings in California (except at those crossings located in a 

quiet zone established pursuant to the federal regulations).

B. The Legislative History

Beyond the statutory language, the commission and the city both argue that the 

legislative history of section 7604 favors their interpretation of the statute. Although we 

need not consider legislative history in the absence of ambiguity in the language of the 

statute (see, e.g., Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 269), which we have 

not found, even if we consider the legislative history of section 7604, it does not support 

the construction of the statute the commission and the city both advance, but instead 

supports the railroads‟ view of the statute.

According to the city, because the 2006 amendment to section 7604 “deleted th[e] 

requirement” “that bells, whistles or sirens be „placed on‟ or „attached‟ to a locomotive” 

“and replaced it with the broad language allowing the use of a „bell, siren, horn, whistle, 

or similar audible warning device,” the Legislature must have “no longer intended that 

audible warning devices be limited to those that are locomotive-mounted.” Similarly, the 

commission argues that “[t]he legislative history of section 7604 shows that the 

Legislature acted deliberately when it amended the prior version of section 7604, which 

required [locomotive-mounted] bells or whistles to be sounded at public highway-rail 

crossing, and adopted the current version of section 7604, which does not require the use 

of train mounted warning devices.”

In our view, however, what the history of the 2006 amendment to section 7604 

shows is that the Legislature did intend to require the use of train-mounted audible 

warning devices at all crossings in California, including pedestrian crossings like those at 

issue here (with the exception of crossings located in quiet zones established pursuant to 

the federal regulations). Recall that before the 2006 legislative action, section 7604 and
22

its predecessor statutes had expressly required trains to sound train-mounted audible 

warning devices at railroad crossings in California for nearly 150 years. As we have 

explained, in 2005 the Federal Railroad Administration promulgated federal regulations 

that made the sounding of a locomotive-mounted audible warning device at public 

highway-rail grade crossings a requirement of federal law. (49 C.F.R. § 222.21(a)

(2006); 70 Fed.Reg. 21844, 21891-21892 (Apr. 27, 2005).) At the same time, those 

federal regulations left the sounding of locomotive horns at pedestrian crossings entirely 

to the states to regulate. (49 C.F.R. § 222.27 (2006); 70 Fed.Reg. 21844, 21892 (Apr. 27, 

2005).)

It was in this context that the initial amendment to section 7604 was proposed. 

(Assem. Bill No. 1935 (2005-2006 Reg. Sess.) as amended Apr. 18, 2006.) As initially 

drafted, subdivision (b) of the proposed new version of section 7604 expressly required 

the sounding of a locomotive horn at public highway-rail grade crossings “in accordance 

with Section 222.21 of Title 49 of the Code of Federal Regulations.” (Assem. Bill No. 

1935 (2005-2006 Reg. Sess.) § 5, as amended Apr. 18, 2006 [proposed language of 

§ 7604, subd. (b)].) At the same time, even though the new federal regulations did not 

require it, subdivision (c) of the proposed new version of section 7604 expressly required 

the sounding of a locomotive horn at private highway-rail grade crossings and at 

pedestrian crossings “pursuant to subdivision (b).” (Assem. Bill No. 1935 (2005-2006 

Reg. Sess.) § 5, as amended Apr. 18, 2006 [proposed language of § 7604, subd. (c)].) 

Thus, it was clear at the outset of the process of revising section 7604 in response to the 

new federal regulations that the Legislature intended to preserve the historical 

requirement that locomotive-mounted audible warning devices were to be sounded at all

railroad crossings in California except those located in quiet zones, even though federal 

law did not require it.
23

When the provisions in Assembly Bill No. 1935 revising section 7604 were 

amended in May 2006 to the language presently contained in the statute, there is no 

indication in the legislative history that the Legislature suddenly intended to depart from 

its initial intent to preserve this historical requirement. From all appearances, the May 

2006 revision of the bill was cosmetic, not substantive. Instead of incorporating into 

section 7604 language taken from the federal regulations, the Legislature opted to 

simplify the statute by merely referring to the federal regulations. Thus, the language 

proposed for subdivision (a)(1) of section 7604 required “a bell, siren, horn, whistle, or 

similar audible warning device” to be sounded “at any public crossing in accordance with 

Section 222.21 of Title 49 of the Code of Federal Regulations.” (Assem. Bill No. 1935 

(2005-2006 Reg. Sess.) § 3, as amended May 26, 2006 [proposed language of § 7604, 

subd. (a)(1)].) Similarly, the language proposed for subdivision (a)(2) of the statute 

required the sounding of “a bell, siren, horn, whistle, or similar audible warning device

. . . consistent with paragraph (1), at all rail crossings not subject to the requirements of 

Subpart B (commencing with Section 222.21) of Part 222 of Title 49 of the Code of 

Federal Regulations.” (Assem. Bill No. 1935 (2005-2006 Reg. Sess.) § 3, as amended 

May 26, 2006 [proposed language of § 7604, subd. (a)(2)].)

Since no other explanation has been offered for the May 2006 revision to the 

proposed amendments to section 7604, we believe the Legislature recognized that to 

preserve the historical requirement that locomotive-mounted audible warning devices 

were to be sounded at all railroad crossings in California except those in quiet zones, it 

was not necessary to include verbatim large amounts of language from the federal 

regulations, but instead it was sufficient to require the sounding of an audible warning 

device “in accordance with Section 222.21” -- since that federal regulation expressly 

requires the sounding of a locomotive-mounted audible warning device.
24

In sum, while it is true, as the city argues, that the 2006 amendment to section 

7604 deleted the express requirement “that bells, whistles or sirens be „placed on‟ or 

„attached‟ to a locomotive,” it is not true that the Legislature simply “replaced [that 

requirement] with the broad language allowing the use of a „bell, siren, horn, whistle, or 

similar audible warning device.‟ ” Instead, the Legislature replaced the express 

requirement of a locomotive-mounted audible warning device with the express 

requirement that an audible warning device be sounded “in accordance with Section 

222.21 -- a federal regulation that itself expressly requires the sounding of a 

“[l]ocomotive horn,” which by definition means an audible warning device “mounted on 

a locomotive or control cab car.” (49 C.F.R. § 222.9 (2006).) In making this amendment 

to the statute, the Legislature plainly signaled its intent not to deviate from the longstanding requirement of state law that an audible warning device mounted on a 

locomotive must be sounded at every railroad crossing in California, with the exception 

of those within quiet zones established pursuant to the federal regulations.

IV

Conclusion

Because the pedestrian crossings at issue here are not within a quiet zone 

established pursuant to the federal regulations, by the command of the Legislature in 

section 7604 a locomotive-mounted audible warning device must be sounded at those 

crossings. And because the commission does not have the authority to contravene the 

will of the Legislature as expressed in section 7604, the commission does not have the 

authority to grant the city‟s application to the extent that application asks the commission 

to approve the use of wayside horns in lieu of train horns at the pedestrian crossings 

along the city‟s beach trail. The commission erred in concluding otherwise.
25

DISPOSITION

The commission‟s Decision Regarding Jurisdiction (Decision No. 12-08-028) is 

set aside.

 ROBIE , J.

We concur:

 HULL , Acting P. J.

 DUARTE , J.