PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

BNSF RAILWAY COMPANY, a 

Delaware corporation, 

 Plaintiff - Appellee, 

v. 

TODD HIETT, in his capacity as Chairman 

of the Oklahoma Corporation Commission; 

BOB ANTHONY, in his capacity as Vice 

Chairman of the Oklahoma 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 official capacity as 

Attorney General of the State of Oklahoma, 

 Intervenor 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: 1
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 Plaintiff - Appellee, 

v. 

CITY OF DAVIS, an Oklahoma municipal 

corporation; CITY OF EDMOND, an 

Oklahoma municipal corporation, 

 Defendants - Appellants, 

TODD HIETT, in his capacity as Chairman 

of the Oklahoma Corporation Commission; 

BOB ANTHONY, in his capacity as Vice 

Chairman of the Oklahoma Corporation 

Commission; DANA MURPHY, in her 

capacity as Commissioner of the Oklahoma 

Corporation Commission, 

 Defendants, 

and 

MIKE HUNTER, in his official capacity as 

Attorney General of the State of Oklahoma, 

 Intervenor 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 General (Mike Hunter, Attorney General of 

Oklahoma, and Mithun Mansinghani, Solicitor 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, Oklahoma for Plaintiff-Appellee. 

_________________________________ 

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Before MATHESON, PHILLIPS, and CARSON, Circuit Judges. 

_________________________________ 

CARSON, Circuit Judge. 

_________________________________ 

Congress enacted the Interstate Commerce Commission Termination Act 

(“ICCTA”) to establish an exclusive federal scheme of economic regulation for 

railroad transportation. The ICCTA created the Surface Transportation Board 

(“STB” or the “Board”) and vests it with exclusive jurisdiction over railroad 

operations. 49 U.S.C. § 10501(b). Meanwhile, the Oklahoma legislature passed the 

Blocked Crossing Statute, which fines railroad operators for occupying grade, or 

street-level, crossings for more than ten minutes. Municipal authorities in Oklahoma 

fined Plaintiff BNSF for violating its Blocked Crossing Statute—setting up a 

preemption challenge between the ICCTA and the Blocked Crossing Statute. But 

Defendants argue the Federal Railroad Safety Act (“FRSA”)—not the ICCTA—

applies to Oklahoma’s statute and does not preempt it. The district court held that 

the ICCTA preempts Oklahoma’s Blocked Crossing Statute because it regulates 

railroad operations. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 

I.

Oklahoma’s Blocked Crossing Statute provides that “no railcar shall be 

brought to rest in a position which blocks 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). 

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Plaintiff operates interstate trains nationally, including throughout 952 route 

miles in Oklahoma. Sixteen days after the Blocked Crossing Statute took effect, one 

of Plaintiff’s trains occupied the side track 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 crossing. A police officer cited Plaintiff for 

violating the Blocked Crossing Statute. 

The next day, in Edmond, Oklahoma, one of Plaintiff’s trains again occupied 

the side track for 80 minutes so that two other trains could 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 Blocked Crossing Statute. The City of Edmond and City of 

Davis each filed complaints against Plaintiff before the Oklahoma Corporation 

Commission (“OCC”) to enforce the citations. The OCC secretary issued a citation 

and notice of hearing. 

Before that hearing took place, Plaintiff 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 the ICCTA, 49 U.S.C. 

1

 “Side tracks are used to park a train 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 where the tracks become unusable due to 

washouts, accidents, maintenance, etc.” Friberg v. Kan. City S. Ry. Co., 267 F.3d 

439, 440 n.1 (5th Cir. 2001). 

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§§ 10101 et seq., and the FRSA, 49 U.S.C. §§ 20101 et seq., preempt the Blocked 

Crossing Statute. Plaintiff sought a declaratory judgment and preliminary and 

permanent injunctions. The Oklahoma Attorney General intervened. On cross 

motions for summary judgment—granting Plaintiff’s and denying Defendants’—the 

district court declined to consider the Blocked Crossing Statute exclusively under the 

FRSA, determined the ICCTA expressly preempts the Blocked Crossing Statute, and 

permanently enjoined Defendants from enforcing it. Defendants 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 party.” Tesone v. Empire Mktg. Strategies, 942 

F.3d 979, 994 (10th Cir. 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 (Trastuzumab) Mktg. & Sales Prac. Litig., 960 F.3d 

1210, 1224 (10th Cir. 2020) (citation and internal quotation marks omitted). “In 

conducting this analysis, we engage in de novo review of all the district court’s legal 

conclusions.” Id. (citation and internal quotation marks omitted). “Thus, we ordinarily 

consider pre[-]emption as a legal issue subject to de novo review.” Id. (citation omitted). 

III.

“The Supremacy Clause establishes that federal law ‘shall be the supreme Law of 

the Land . . . any Thing in the Constitution or Laws of any State to the Contrary 

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notwithstanding.’” PLIVA, Inc. v. Mensing, 564 U.S. 604, 617 (2011) (quoting U.S. 

Const., art. VI, cl. 2). Federal 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 government to occupy exclusively. Id. at 79. 

And third, federal law preempts state law when they conflict. Id. But Congress’s 

purpose matters the most in every preemption case. Medtronic, Inc. v. Lohr, 518 U.S. 

470, 485 (1996). When a statute contains an express preemption provision, that 

provision’s “plain wording” controls because it “necessarily contains the best evidence of 

Congress’ pre-emptive intent.” Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 

125 (2016) (citation omitted). 

 Congress passed the ICCTA “to establish an exclusive Federal scheme of 

economic regulation and deregulation for railroad transportation.” Emerson v. Kan. City 

S. Ry. Co., 503 F.3d 1126, 1132 (10th Cir. 2007). 2 The ICCTA provides 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 powers reserved by the Constitution, the 

Federal scheme of economic regulation and deregulation is intended to address and 

encompass all such regulation and to be completely exclusive. Any other 

construction would undermine the uniformity of Federal standards and risk the 

balkanization and subversion of the Federal 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). 

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§ 10501(b). The plain language is clear: the STB has exclusive jurisdiction over the 

operation of side tracks in Oklahoma. Because 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 municipal authorities may fine the rail carrier.3

 But 

many factors determine the time that a train will block a grade crossing, including the 

train’s speed and length, whether the side track intersects the grade crossing, when a 

railroad schedules a train to pass, and the 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 operates 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 preempts a state’s blocked-crossing statute—

held the ICCTA preempted the Texas Anti-Blocking 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 decisions.” Id. at 444. We previously 

approved Friberg’s reasoning when we relied on it to support our conclusion of ICCTA 

non-preemption. See Emerson, 503 F.3d at 1132 (“Though the courts in Friberg and 

Auburn concluded that the state laws in question were preempted, their reasoning 

supports our conclusion of non-preemption.”). Thus, while Oklahoma’s Blocked 

Crossing Statute states it is “for the safety and welfare of the people,” Okla. Stat. Ann. tit. 

3

 The parties do not dispute that BNSF is a rail carrier. 

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66, § 190(A), it too effectively regulates rail operations—a task the ICCTA reserves for 

the STB. So, the ICCTA, by its plain language, preempts Oklahoma’s Blocked Crossing 

Statute. 

Moreover, the STB’s own understanding of its authority under the ICCTA 

supports our plain-language determination. “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 construction is plainly 

unreasonable.” (citation and internal quotation marks omitted)). Despite hearing 

argument that the ICCTA “only preempts direct ‘economic’ regulation of railroads, and 

not a state or local measure aimed at protecting its residents,” the STB concluded that the 

scope of ICCTA preemption “is broader than just direct economic regulation of 

railroads” and that states and municipalities “cannot take an action that would have the 

effect of foreclosing or unduly 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 whether the FRSA does 

too. 

Still, Defendants argue the district court incorrectly applied the ICCTA to the 

Blocked Crossing Statute because “the safety issues posed by blocked crossings are 

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within the authority of the [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 jurisdiction 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, Sixth, Eighth, Ninth, and D.C. Circuits 

construing it together with the FRSA so that rail-safety issues fall under the FRSA, and 

the Fifth Circuit alone concluding the ICCTA subsumes the FRSA.4

 Defendants 

correctly state that the FRSA applies to rail-safety issues, but we need not “reconcile the 

ICCTA’s interaction with . . . the FRSA,” because 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 exists 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 requiring railroads to construct 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 that these cases do not address blocked 

crossings because “the legal question of whether the ICCTA 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 whether 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 whether the statute concerns rail safety. Here, 

the Blocked Crossing Statute does not concern rail safety, so we need not address 

FRSA preemption. 

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public safety, not rail safety, and regulates railroad operations. Thus, the district court 

properly analyzed whether the ICCTA, and not the FRSA, preempts it. 

Congress enacted the FRSA in 1970 to “promote safety in every area of railroad 

operations and to reduce railroad-related accidents and incidents.” Henning v. Union 

Pac. R. Co., 530 F.3d 1206, 1211 (10th Cir. 2008) (quoting 49 U.S.C. § 20101). It 

“grants the Secretary of Transportation the authority 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 coordinated effort to develop and carry out solutions 

to the railroad grade crossing problem and measures to protect pedestrians in densely 

populated areas along railroad rights of way.” 49 U.S.C. § 20134(a). But so that “[l]aws, 

regulations, and orders related to railroad safety” are “nationally uniform,” the FRSA 

preempts a state’s “law, regulation, or order related to railroad safety” when the 

Secretary of Transportation “prescribes a regulation 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 ICCTA and FRSA “have concluded that the 

federal statutory scheme places principal federal regulatory authority for rail safety with 

the [FRA], not the STB.” Island Park, LLC, 559 F.3d at 107. Thus, the “FRSA provides 

the appropriate basis for analyzing whether a state law, regulation or order affecting rail 

safety is pre-empted by federal law.” Id. (citing Bos. & Me. Corp., 364 F.3d at 321; 

Iowa, Chi. & E. R.R. Corp., 384 F.3d at 561; 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 intended to retain the 

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well settled safety authority of the FRA and the states under [the] FRSA when it enacted 

[the ICCTA].” In re Waneck, No. FD 36167, 2018 WL 5723286, at *5 n.6 (S.T.B. Oct. 

31, 2018). Though “in rare cases,” the 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 paramedic . . . to jump between rail cars of a 

stopped train to reach a patient in time,” delayed firefighters and paramedics’ response 

times generally, and caused Oklahomans to engage in risky behavior to avoid blocked 

crossings. Defendants argue the Blocked Crossing Statute responds to these safety 

concerns and therefore falls under the FRSA. While emergency responders’ delayed 

ability to reach people on the other side of a blocked crossing and risky road-blockageinduced behaviors pose legitimate safety issues, they do not concern any “hazard to the 

railroad system or its participants.” People v. Burlington N. Santa Fe R.R., 148 Cal. 

Rptr. 3d 243, 252 (Cal. Ct. App. 2012). Rather, 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 vehicles. This is a legitimate safety concern for those 

members of the public who cannot be reached by emergency vehicles located on the 

opposite side of blocked rail crossings, but it is not a ‘rail safety’ concern.”). 

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Defendants urge this Court to “agree with the Eighth Circuit’s interpretation of rail 

safety in the FRSA” because “it is more consistent with longstanding interpretations of 

the safety jurisdiction conferred under the FRSA.” In Iowa, Chicago & Eastern Railroad 

Corporation, Washington County sought to require the Iowa, Chicago & Eastern Railroad 

Corporation (“IC&E”) to replace four bridges on the interstate rail line at IC&E’s 

expense under an Iowa statute. 384 F.3d at 558. Two of the bridges carried the rail line 

over county highways and had “severely deficient vertical clearances for highway 

traffic,” and the other two bridges carried the highway over the rail 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 did 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 component[,] . . . 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-state cooperation on highway safety. Id. 

But the Eighth Circuit held only that, on the record before it, the railroad failed to 

establish that the ICCTA preempted state administrative 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 railroad system or its participants, implicating rail safety. 

These concerns are not at issue here—the Blocked Crossing Statute does not seek to 

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regulate the condition of grade crossings but the movement of trains through them. Its 

primary directive prohibits the time a train can block a grade crossing. “Indeed, the 

statute has no application except with respect to the operation of railroads at rail 

crossings.” Elam, 635 F.3d at 807. Thus, the district court properly analyzed whether the 

ICCTA, and not the FRSA, preempts the Blocked Crossing Statute and concluded that it 

does. 

AFFIRMED. 

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