PUBLISH
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________ _________________ BNSF RAILWAY COMPANY, a Delaware corporation, Plaintiff - Appellee,

v. TODD HIETT, in his cap acity as Chairman of the Oklahoma Corporation Commission; BOB ANTHONY, in his capacity as Vice Chairman of the Ok lahoma Corporation Commission; DANA MURPHY, in her capacity as Commissioner of the Oklahoma Corporation Commission, Defendants - Appellants, and CITY OF EDMOND, an Oklahoma municipal corporation; CITY OF DAVIS, an Oklahoma municipal corporation, Defendants, and MIKE HUNTER, in his o fficial capacity as Attorney General of the State of Oklahoma,

Interven or Defendant - Appellant.

––––––––––––––––––– –––––––––––––––– BNSF RAILWAY COMPANY, a Delaware corporation, No. 21-6000 FILED United States Court of Appeals Tenth Circuit 

### January 11, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 12 Plaintiff - Appellee,

v. CITY OF DAVIS, an Oklahoma municipal corporation; CITY OF EDMOND, an Oklahoma municipal corporation, Defendants - Appellants, TODD HIETT, in his cap acity as Chairman of the Oklahoma Corporation Commission; BOB ANTHONY, in his capacity as Vice Chairman of the Ok lahoma Corporation Commission; DANA MURPHY, in her capacity as Commissioner of the Oklahoma Corporation Commission, Defendants, and MIKE HUNTER, in his o fficial capacity as Attorney General of the State of Oklahoma,

In tervenor Defendant. No. 21-6005

________________ _________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:19-CV-00769-G)

________________ _________________ Bryan Cleveland, Assistant Solicitor Gene ral (Mike Hunter, Attorney General of Oklahoma, and Mithun Mansinghani, Solic itor General with him on the briefs), Oklahoma City, Oklahoma for Defendants-Appellants. R. Richard Love, III, Conner & Winters, LLP (C . Austin Birnie and J. Dillon Curran with him on the brief), Tulsa, Okla homa for Plaintiff-Appellee.

________________ _________________ Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 23 Before MATHESON , PHILLIPS , and CARSON , Circuit Judges.

________________ _________________ CARSON , Circuit Judge.

________________ _________________ Congress enacted the In terstate Commerce Commi ssion Termination Act (“ICCTA”) to establish an exclusive fe deral scheme of economic regulation for railroad transportation. The ICCTA cr eated the Surface Transportation Board (“STB” or the “Board”) and vests it w ith exclusive jurisd iction over railroad operations. 49 U.S.C. § 10501(b). Meanwh ile, the Oklahoma legi slature passed the Blocked Crossing Statute, wh ich fines railroad operators for occupying grade, or street-level, crossings for mo re than ten minutes. Munici pal authorities in Oklahoma fined Plaintiff BNSF for violating its Blocked Crossing St atute—setting up a preemption challenge between the ICCTA a nd the Blocked Crossing Statute. But Defendants argue the Federal Railroad Safety Act (“FRSA”)—not the ICCTA— applies to Oklahoma’s statut e and does not preempt it. Th e district court held that the ICCTA preempts Oklahoma’s Blocked Crossing Statute because it regulates railroad operations. We ex ercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Oklahoma’s Blocked Crossi ng Statute provides that “no railcar shall be brought to rest in a positi on which blocks vehicular tra ffic at a railroad intersection with a public highway or street for longer th an ten (10) minutes.” Okla. Stat. Ann. tit. 66, § 190(A). Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 34 Plaintiff operates interstate trains na tionally, including th roughout 952 route miles in Oklahoma. Sixteen days after th e Blocked Crossing Stat ute took effect, one of Plaintiff’s trains occupied the side tr ack in Davis, Oklahoma, for 38 minutes so that another train could pass on the main line. 1 While Plaintiff’s train occupied the side track, it blocked at least one grade cro ssing. A police officer cited Plaintiff for violating the Blocked Crossing Statute. The next day, in Edmond, Oklahoma, one of Plaintiff’s trai ns again occupied the side track for 80 minutes so that two other trains c ould pass. That train also blocked at least one grade crossing. And 12 days later, one of Plaintiff’s trains blocked a crossing for a third time while it stopped on the side track in Edmond for 37 minutes to let another train pass. On both occasions, a police officer cited Plaintiff for violating the Bloc ked Crossing Statute. The C ity of Edmond and City of Davis each filed complaints against Plai ntiff before the Oklahoma Corporation Commission (“OCC”) to enforce the citations. The OCC s ecretary issued a citation and notice of hearing. Before that hearing took place, Plainti ff sued the City of Edmond, City of Davis, OCC Chairman Todd Hiett, OCC Vice-Chairman Bob Anthony, and OCC Commissioner Dana Murphy in federal court, asserting that th e ICCTA, 49 U.S.C.

1 “Side tracks are used to park a trai n going one direction on a main line while a train going the opposite direction passes. They can also be used as a detour to circumvent places on the main line wh ere the tracks become unusable due to washouts, accidents, maintenan ce, etc.” Friberg v. Kan. City S. Ry. Co., 267 F.3d 439, 440 n.1 (5th Cir. 2001). Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 45 §§ 10101 et seq., and the FRSA, 49 U.S.C. §§ 20101 et seq., preempt the Blocked Crossing Statute. Plaintiff sought a d eclaratory judgment and preliminary and permanent injunctions. The Oklahoma Atto rney General intervened. On cross motions for summary judgment—granting Pl aintiff’s and denying Defendants’—the district court declined to consider the Blocked Crossing Statute exclusively under the FRSA, determined the ICCTA expressly pr eempts the Blocked Cr ossing Statute, and permanently enjoined Defendants from enforcing it. De fendants appeal.

II. “We review the district court’s grant of summary judgment de novo, applying the same legal standard as the district court.” US Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1324 (10th Cir. 2010) (citation omitted). “In doing so, we consider the evidence in the light most favorable to the non-moving part y.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 994 (10th Ci r. 2019) (citation and internal quotation marks omitted). “A party is entitled to summary judgment if there is no genuine dispute as to any material fact.” In re MDL 2700 Genentech Herceptin (Trastuzum ab) Mktg. & Sales Prac. Litig., 960 F.3d 1210, 1224 (10th Cir. 2020) (citation and in ternal quotation marks omitted). “In conducting this analysis, we engage in de no vo review of all the district court’s legal conclusions.” Id. (citation an d internal quotation marks om itted). “Thus, we ordinarily consider pre[-]emption as a legal issue subject to de novo review.” Id. (citation omitted).

III. “The Supremacy Clause establishes that fe deral law ‘shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 56 notwithstanding.’” PLIVA, Inc. v. Mensing, 564 U.S. 604, 617 (2011) (quoting U.S. Const., art. VI, cl. 2). Fe deral law preempts state law under the Supremacy Clause in three circumstances. Eng. v. Gen. Elec. Co., 496 U.S. 72, 78 (1990). First, Congress can explicitly define the preemptive scope of its enactments. Id. Second, absent explicit statutory language, federal law preempts state law where state law regulates conduct in a field that Congress intended the federal governme nt to occupy exclusively. Id. at 79. And third, federal law preempts state law wh en they conflict. Id. But Congress’s purpose matters the most in ev ery preemption case. Medtroni c, Inc. v. Lohr, 518 U.S. 470, 485 (1996). When a statute contai ns an express preemption provision, that provision’s “plain wording” co ntrols because it “necessarily c ontains the best evidence of Congress’ pre-emptive intent.” Puerto Rico v. Franklin Ca l. Tax-Free Tr., 579 U.S. 115, 125 (2016) (citation omitted). Congress passed the ICCTA “to establis h an exclusive Federal scheme of economic regulation and deregula tion for railroad transportation.” Emerson v. Kan. City S. Ry. Co., 503 F.3d 11 26, 1132 (10th Cir. 2007). 2 The ICCTA provid es that the STB has exclusive jurisdiction over transportation by rail carriers and the operation of tracks or facilities, including side tracks , even if the tracks are located in one state. 49 U.S.C.

2 “Although States retain the police pow ers reserved by the Constitution, the Federal scheme of economic regulation and deregulation is intended to address and encompass all such regulation and to be completely exclusive. Any other construction would undermine the uniformit y of Federal standards and risk the balkanization and subversion of the Federa l scheme of minimal regulation for this intrinsically interstate form of transportation.” Fayus Enters. v. BNSF Ry. Co., 602 F.3d 444, 452 (D.C. Cir. 2010) (quoting H.R. Rep. No . 104–311, at 96 (1995), as reprinted in 1995 U.S.C.C.A.N. at 808). Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 67 § 10501(b). The plain language is clear: the STB has exclusive jurisdiction over the operation of side tracks in Oklahoma. Becaus e the ICCTA is unambiguous, we need not look outside it to divine Congress’s intent. The Blocked Crossing Statute regulates how long a rail carrier may block, or occupy, a grade crossing before municipa l authorities may fine the rail carrier. 3 But many factors determine the time that a trai n will block a grade crossing, including the train’s speed and length, whether the side tr ack intersects the grade crossing, when a railroad schedules a train to pass, and th e time required to comply with federally mandated tests and procedures. Thus, “ [r]egulating the time a train can occupy a rail crossing impacts . . . the way a railroad opera tes its trains, with concomitant economic ramifications . . . .” Friberg, 267 F.3d at 443. In Friberg, the Fifth Circuit—the only other circuit to address whether the ICCTA pr eempts a state’s blocked-crossing statute— held the ICCTA preempted the Texas Anti-Bl ocking Statute because “[n]othing in the ICCTA otherwise provides authority for a state to impose operating limitations on a railroad,” or regulate “a railroad’s economic de cisions.” Id. at 444. We previously approved Friberg’s reasoning when we relied on it to support our co nclusion of ICCTA non-preemption. See Emerson, 503 F.3d at 1132 (“Though the co urts in Friberg and Auburn concluded that the state laws in question were preempted, their reasoning supports our conclusion of non-preemp tion.”). Thus, while Oklahoma’s Blocked Crossing Statute states it is “for the safety a nd welfare of the people,” Okla. Stat. Ann. tit.

3 The parties do not dispute that BNSF is a rail carrier. Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 78 66, § 190(A), it too effectively regulates rail operations—a task the ICCTA reserves for the STB. So, the ICCTA, by its plain lang uage, preempts Oklahoma’s Blocked Crossing

Statute. Moreover, the STB’s own understanding of its authority under the ICCTA supports our plain-language de termination. “As the agency authorized by Congress to administer the [ICCTA], the [STB] is uniquely qualified to determine whether state law should be preempted by the [ICCTA].” Emerson, 503 F.3d at 1130 (citations omitted); see also R.R. Ventures, Inc. v. Surface Transp. Bd., 299 F.3d 523, 548 (6th Cir. 2002) (“[T]his Court must give considerable weight and due deference to the [STB’s] interpretation of the statutes it administers unless its statutory c onstruction is plainly unreasonable.” (citation and internal qu otation marks omitted)). Despite hearing argument that the ICCTA “only preempts dir ect ‘economic’ regulation of railroads, and not a state or local measure aimed at protecti ng its residents,” the STB concluded that the scope of ICCTA preemption “is broader th an just direct economic regulation of railroads” and that states and municipalities “c annot take an action that would have the effect of foreclosing or undul y restricting a railroad’s ability to conduct its operations or otherwise unreasonably burden interstate commerce.” CSX Transp., Inc., Fed. Carr. Cas. (CCH) ¶ 37186, 2005 WL 584026, at *7

− 8 (STB Mar. 14, 2005). Because the ICCTA preempts the Blocked Crossing Statute, we need not consider wh ether the FRSA does

too. Still, Defendants argue the district cour t incorrectly applie d the ICCTA to the Blocked Crossing Statute because “the safety issues posed by blocked crossings are Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 89 within the authority of th e [Federal Railroad Administration (‘FRA’)],” the agency administering the FRSA, and governed by the FRSA’s preemption clause. Defendants explain that courts must construe the STB’s jurisdicti on under the ICCTA in pari

materia —meaning, construed together— with the FRA’s, “cognizant of the presumption against implied repeal of the FRSA.” And Defendants contend a split exists about ICCTA interpretation, with the Second, Si xth, Eighth, Ninth, and D.C. Circuits construing it together with the FRSA so that rail-safety i ssues fall under the FRSA, and the Fifth Circuit alone concludi ng the ICCTA subsumes the FRSA. 4 Defendants correctly state that th e FRSA applies to rail-safety issu es, but we need not “reconcile the ICCTA’s interaction with . . . the FRSA,” be cause the Blocked Crossing Statute concerns

4 The Fifth Circuit is the only circuit to consider whether the ICCTA preempts a state’s blocked-crossing statute—no split ex ists with respect to this issue. See Friberg, 267 F.3d at 444; Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 807 (5th Cir. 2011). The cases Defendants cite concern other issues. See Island Park, LLC v. CSX Transp., 559 F.3d 96, 98

− 99 (2d Cir. 2009) (private rail-crossing closure order); Tyrrell v. Norfolk S. Ry. Co., 248 F.3d 517, 520

− 21 (6th Cir. 2001) (state trackclearance requirement); Iowa, Chi. & E. R.R. Corp. v. Wash. Cnty., 384 F.3d 557, 558 & n.1 (8th Cir. 2004) (state statute re quiring railroads to c onstruct and maintain bridges); Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., 951 F.3d 1142, 1161 (9th Cir. 2020) (right-of-way easement agreement issued under the Indian Right of Way Act); Bos. & Me. Corp. v. Surface Transp . Bd., 364 F.3d 318, 319 (D.C. Cir. 2004) (STB order on train speed limit). Defendants argue it does not matter th at these cases do not address blocked crossings because “the legal question of whether the I CCTA implicitly repeals the FRSA” should not “vary depending on the facts being analyzed.” But Defendants mistake the relevant legal question. When approaching a railroad statutorypreemption issue, a court must first ask wh ether the statute at issue concerns rail safety. If the answer is no, that statute cannot fall under the FRSA’s purview, and the court need not analyze whether the FRSA preempts it. Thus, the statute’s subjectmatter is important because it informs whethe r the statute concerns rail safety. Here, the Blocked Crossing Statute does not concer n rail safety, so we need not address FRSA preemption. Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 910 public safety, not rail safety, and regulates railro ad operations. Thus, the district court properly analyzed whether the ICCTA, and not the FRSA, preempts it. Congress enacted the FR SA in 1970 to “pro mote safety in every area of railroad operations and to reduce railroad-related acci dents and incidents.” Henning v. Union Pac. R. Co., 530 F.3d 1206, 1211 (10th Ci r. 2008) (quoting 49 U. S.C. § 20101). It “grants the Secretary of Transportation the au thority to ‘prescribe regulations and issue orders for every area of railroad safety.’” Id. (quoting 49 U.S.C. § 20103(a)). And it requires the Secretary to “maintain a coordinate d effort to develop and carry out solutions to the railroad grade crossing problem and me asures to protect pedestrians in densely populated areas along railroad rights of way.” 49 U.S.C. § 20134(a). Bu t so that “[l]aws, regulations, and orders relate d to railroad safety” are “na tionally uniform,” the FRSA preempts a state’s “law, regulation, or order related to railroad safety ” when the Secretary of Transportation “prescribes a re gulation or issues an order covering the subject matter of the State requirement.” 49 U.S.C. § 20106 (emphasis added). Circuits examining the relationship between the IC CTA and FRSA “have concluded that the federal statutory scheme places principal federal regulatory au thority for rail safety with the [FRA], not the STB.” Isla nd Park, LLC, 559 F.3d at 10 7. Thus, the “FRSA provides the appropriate basis for analyzing whether a state law, regulation or order affecting rail safety is pre-empted by federal la w.” Id. (citing Bos. & Me. Corp. , 364 F.3d at 321; Iowa, Chi. & E. R.R. Corp., 384 F.3d at 5 61; Tyrrell, 248 F.3d at 523). And the STB agrees with those circuits’ interpretation of its authority, stating that ICCTA preemption “applies only to non-safety railroad regulation and that Congress inte nded to retain the Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 1011 well settled safety authority of the FRA and th e states under [the] FRSA when it enacted [the ICCTA].” In re Wane ck, No. FD 36167, 20 18 WL 5723286, at *5 n.6 (S.T.B. Oct. 31, 2018). Though “in rare cases,” th e STB clarified, “both FRSA and ICCTA preemption may apply.” Id. at *7. But we need not examine the interplay between the ICCTA and the FRSA because the Blocked Crossing Statute does not concern rail safety. The Blocked Crossing Statute recites that “it is immediately necessary for the safety and welfare of the people,” before prohibiting any railcar from “block[ing] vehicular traffic at a railroad intersection with a public highway or street for longer than ten (10) minutes.” Okla. Stat. Ann. tit. 66, § 190(A). Defendants explain that blocked crossings in Oklahoma have “forced a parame dic . . . to jump between rail cars of a stopped train to reach a patient in time,” de layed firefighters and paramedics’ response times generally, and caused Oklahomans to e ngage in risky behavi or to avoid blocked crossings. Defendants argue the Blocked Cr ossing Statute responds to these safety concerns and therefore falls under the FR SA. While emergency responders’ delayed ability to reach people on the other side of a blocked crossing and risky road-blockageinduced behaviors pose legitimat e safety issues, they do not concern any “hazard to the railroad system or its participants.” Peopl e v. Burlington N. Santa Fe R.R., 148 Cal. Rptr. 3d 243, 252 (Cal. Ct. App. 2012). Rathe r, they are local public safety issues—not rail safety issues. See id. at 253 (“Instead, the People assert only that blocked rail crossings will delay emergency ve hicles. This is a legitimate safety concern for those members of the public who cannot be reach ed by emergency vehicles located on the opposite side of blocked rail crossings, bu t it is not a ‘rail safety’ concern.”). Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 1112 Defendants urge this Court to “agree with the Eighth Circuit’s interpretation of rail safety in the FRSA” because “ it is more consistent with lo ngstanding interpretations of the safety jurisdiction confe rred under the FRSA.” In Io wa, Chicago & Eastern Railroad Corporation, Washington County sought to re quire the Iowa, Chicago & Eastern Railroad Corporation (“IC&E”) to replace four brid ges on the interstate rail line at IC&E’s expense under an Iowa statute. 384 F.3d at 5 58. Two of the bridges carried the rail line over county highways and ha d “severely deficient vertical clearances for highway traffic,” and the other two bridges carried th e highway over the ra il line—one had a sharp crest, and a fire destroyed the other. Id. IC&E argued that the ICCTA preempted Iowa’s statute and FRSA preemption di d not apply because the County sought to replace the bridges for highway improvement—not rail safety . Id. at 560. But the Eighth Circuit found that argument unpersuasive because the “reasons for replacing the bridges . . . clearly include[d] a safety comp onent[,] . . . albeit a highway safety issue.” Id. And, in dicta, that court rejected any argument that “‘rail safety’ for the purposes of FRSA preemption does not include the highway safety risks created at rail crossings,” after recognizing a long history of federal-stat e cooperation on highway safety. Id. But the Eighth Circuit held on ly that, on the record before it, the railroad failed to establish that the ICCTA preempted state ad ministrative proceedings seeking to require the railroad to replace the four bridges. Id. at 561. It did not make a determination on the FRSA. And “deteriorating or inadequate railway-highway bridges,” id. at 560, may create potential hazards to the ra ilroad system or its particip ants, implicating rail safety. These concerns are not at issue here—the Blocked Crossing Statute does not seek to Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 1213 regulate the condition of grade crossings but the movement of trains through them. Its primary directive prohibits the time a trai n can block a grade crossing. “Indeed, the statute has no application except with resp ect to the operation of railroads at rail crossings.” Elam, 635 F.3d at 807. Thus, th e district court properly analyzed whether the ICCTA, and not the FRSA, preempts the Bloc ked Crossing Statute and concluded that it does.

AFFIRMED. Appellate Case: 21-6000 Document: 010110630282 Date Filed: 01/11/2022 Page: 13