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Southern Pacific Transportation Co. v. Public Utility Commission of

filed: November 15, 1993.

SOUTHERN PACIFIC TRANSPORTATION COMPANY, PLAINTIFF-APPELLANT,
v.
PUBLIC UTILITY COMMISSION OF THE STATE OF OREGON, AND ITS MEMBERS, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Oregon. D.C. No. CV-90-70-HJF. Helen J. Frye, District Judge, Presiding.

Before: Dorothy W. Nelson, Stephen Reinhardt, Circuit Judges, and Marion J. Callister, District Judge*fn* . Opinion by Judge Nelson.

Author: Nelson

D.W. NELSON, Circuit Judge:

This case concerns an Oregon law which permits local authorities to ban the sounding of locomotive whistles under certain conditions. Southern Pacific Transportation Company ("Southern Pacific"), a California-based railroad which operates freight trains in Oregon and many other states, contends that the state law is preempted by three federal statutes.

Southern Pacific moved for summary judgment on preemption grounds. Oregon then filed a cross-motion for summary judgment, claiming that its regulations were not preempted as a matter of law.*fn1 Southern Pacific appealed the magistrate's partial grant of summary judgment in favor of the appellees.*fn2 We deferred submission of this case pending the Supreme Court's decision in CSX Transp., Inc. v. Easterwood, 123 L. Ed. 2d 387, 113 S. Ct. 1732 (1993). We now affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 19, 1990, Southern Pacific brought an action in federal court seeking to enjoin the enforcement of Oregon Revised Statute § 763.035, Public Utility Commission Rule 860-42-330, and Public Utility Commission Order No. 89-1037. Southern Pacific claimed that these regulations were preempted by three federal laws: the Locomotive Boiler Inspection Act ("LBIA"), 45 U.S.C. § 22, et seq., the Noise Control Act ("NCA"), 42 U.S.C. § 4901, et seq., and the Federal Railroad Safety Act ("FRSA"), 45 U.S.C. § 421, et seq. The appellees - the Public Utility Commission ("Commission"), its members, and the Attorney General of Oregon - contend that the state laws and regulations are not preempted.

The Oregon statute, which became law in 1983, provides the following:

(1) The power to fix and regulate the speed of railway trains and to regulate the sounding of railway train warning devices at public railroad-highway crossings is vested exclusively in the state.

(2) Upon petition . . . the [Public Utility] Commission shall . . . enter an order fixing and regulating the speed of railway trains or regulating the sounding of railway train warning devices.

Or. Rev. Stat. § 763.035 (1991). The Commission interpreted the statute as authorizing it to restrict the sounding of train whistles*fn3 "because it is a severe annoyance."

Subsequently, the Commission promulgated a rule which stated that: (1) trains were not required to sound whistles at grade crossings "equipped with operating automatic gates, flashing lights, and audible protective devices"; (2) the Commission was empowered to prohibit whistle sounding at such crossings; and (3) railroads were to provide written notification of such prohibitions to their employees. In 1988, the City of Eugene, Oregon petitioned the Commission to prohibit whistle sounding by Southern Pacific trains. The Commission then issued the Eugene Order (No. 89-1037), which banned train whistles at certain crossings in the city between 10 p.m. and 6 a.m.

II. MOOTNESS CLAIM

On September 13, 1991, the Commission issued Order No. 91-1164, which rescinded the Eugene order upon finding that the "prohibition of routine train whistles at protected crossings in Eugene during nighttime hours will significantly increase the risk of accidents at those crossings." Southern Pacific contends that the Commission's rescission of the Eugene order renders this litigation moot. It urges us either to vacate the magistrate's judgment or ...


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