Train Speed
E
~
CITY OF DUBUQUE, IOWA
MEMORANDUM
July 13, 2000
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Train Speed Ordinance
The City of Dubuque has received a denial from the Iowa Department of
Transportation to the request to restrict trains going through town to a 25 MPH
speed limit. This request was made after the City learned that I & M Rail Link plans
to increase their train speeds to 40 MPH.
The City has until Friday, July 21 to appeal. Staff has not been able to determine
any grounds for that appeal. Barring direction from the City Council to the
contrary, no appeal will be filed.
Michael C. Van Milligen
MCVM/dd
Attachment
cc: Barry Lindahl, Corporation Counsel
Tim Moerman, Assistant City Manager
Mike Koch, Public Works Director
~
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CITY OF DUBUQUE, IOWA
MEMORANDUM
July 10, 2000
TO: Michael C. Van Milligen, City Manager
FROM: Michael A. Koch, Public Works Director J!I/~
SUBJECT: Train Speed Ordinance
INTRODUCTION
This is to advise you that on June 21, 2000, the City was notified that the Iowa
Department of Transportation denied the City's request to lower the maximum
allowable train speed through the City of Dubuque.
DISCUSSION
Recently, the City has been receiving complaints in regard to the higher train speeds
of the I & M Rail Link running through the northerly residential neighborhood of the
City. These complaints have related to the safety of the at-grade railroad crossing at
Hawthorne Street, and the high number of pedestrians crossing at this location.
On September 7, 1999, the City was informed by I & M Rail Link that they were going
to be increasing their train speeds up to 40 miles per hour through the City of
Dubuque. The old City ordinance regulating train speeds allowed a maximum of 30
miles per hour for passenger trains, and 25 miles per hour for freight trains.
In subsequent discussions with the lOOT and the Railroad, the City learned that its
ordinance was null and void unless it was approved by the Iowa Department of
Transportation, pursuant to Section 27F.31 of the Code of Iowa. Therefore, on May
9, 2000, the City made a formal application to the Iowa Department of Transportation
to approve the City's old ordinance, which was originally passed in 1976. A copy of
the City's request is attached. The City, in its petition, cited concerns for safety of
the several at-grade rail crossings through the City, and the potential for higher
predicted accident rates. In addition, letters from property owners in the vicinity of
the Hawthorne crossing were attached to the City's request.
Upon receipt of the City's request, both the City and the railroad company were given
thirty (30) days to submit position papers to the Department regarding their relative
positions on the City's petition. Subsequently, the City was served by a "DECISION
AND ORDER" dated June 21, 2000, which notified the City that the Department was
denying the City's petition for lower train speeds.
It was the Department's Finding that the City provided only general concerns for safety
in its petition and cited a low accident rate at all of the crossings through the City.
The railroad argued that, as a matter of law, their train speeds are regulated by the
Federal Railroad Safety Act and that the Iowa Department of Transportation has no
authority to approve the petition of the City.
The City had until July 11, 2000, to contest the Department's Finding, which was
requested by the City to be extended until July 21, 2000. IDOT has decided previous
cases by determining whether a particular local safety hazard existed and whether the
ordinance would eliminate or reduce the hazard. IDOT's Finding indicated that the City
did not establish the existence of any local safety hazards and noted there have been
no accidents at the Hawthorne Street crossing, which was the crossing of greatest
concern of the City.
ACTION TO BE TAKEN
City staff is requesting direction from the City Council as to whether to make a formal
appeal of the Department's Finding. Copies of the City's, railroad's, and the
Department of Transportation's correspondence relating to the City's petition are
enclosed for your review. If additional background information could be identified and
submitted to the Department, it may be possible for the Department's Finding to be
reversed.
The City Council is requested to give direction to City staff on whether to appeal the
Finding of the Iowa Department of Transportation.
MAK/vjd
~"8~:f!~ R;f2J!.~~rt Of Transpor:t~~Rtl
~~ Fax: 515-239-1975
July 11,2000
Michael A. Koch
Public Works Director
City of Dubuque
50 West 13th Street
Dubuque, Iowa 52001-4864
Dear Mr. Koch:
RE: Docket No. RR-RO-OO-l, Request for Approval of Train Speed Ordinance, City of
Dubuque, Iowa.
On July 10,2000, the Department of Transportation received your request for an extension
of the 20-day period for submitting a written statement contesting the department's order
disapproving City Ordinance No. 39-1 relating to the regulation of train speeds in the city
of Dubuque.
Your request has been considered and is granted. The extended deadline for submitting
written statements contesting the Department's decision and order is now July 21,2000.
Sincerely,
Thomas F. Jackson
Iowa Department of Transportation
Modal Division
cc: Charles Webster
Michael Thrall
James Helenhouse
CERTIFICA TE OF SERVICE
The undersigned hereby certifies that on the
} f
, 2000,
the attached document was served upon all parties of record to Docket No. RR-RO-OO-las listed
below by depositing a copy thereof in the U.S. Mail, postage prepaid.
COM~~j
Charles Webster
Canadian NationallIllinois Central
455 North Cityfront Plaza Drive
Chicago, II 60611-5504
Michael Thrall
Nyemaster, Goode, Voights, West
Hansell & O'Brien
700 Walnut, Suite 1600
Des Moines, IA 50309-3899
Michael Koch
Public Works Director
City of Dubuque
50 West 13th Street
Dubuque, IA 52001-4864
James Helenhouse
Fletcher & Sippel LLC
Two Prudential Plaza, Suite 3215
180 North Stetson Avenue
Chicago, IL 60601-6721
Sent by: CITY OF DUBUQUE
319 589 4149;
07/10/00 3:22PM;JeNax #128;page 2/2
.-"--- --.
F.n~il1eeriJ\l;; Divi~iol1
5{] West 13th Strt!l!C
))llbUtIU<1. low" 52001-4864
n 1 ':I) 5tl9.4270
(319) 589-4Wl FAX
DUB~E
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July 10, 2000
Mr. Thomas F. Jackson
Iowa Department of Transportation
Modal Division
800 Lincoln Way
Ames, IA 50010
RE; Train Speed Ordinance. Docket No. RR-RO~00-1
Dear Mr. Jackson:
The City acknowledges the receipt of the Iowa Department of Transportation's Decision and
Order on the City of Dubuque's May 9, 2000 request to lower the maximum allowable train
speeds through the City of Dubuque.
The decision on the City's request to approve the City's 1976 ordinance limiting the speed of
freight trains to 25 miles per hour was served upon the City on June 21, 2000. According to
the Order, included Decision, the CitY is allowed twenty (20) days from the service date of the
Order to file a written statement contesting the Department's Order. This Would allow the City
to contest the finding until July 11, 2000.
Since the initial request to lower the maximum allowable train speeds came from the City
Council, I am requesting an extension of the appeal period to allow time for the City Council
to consider whether to appeal the Decision. The City Council will meet next on July 17,2000;
and therefore, I would request the deadline for filing an appeal be .extended until July 21,
2000. This would allow the City Council sufficient time to review the Decision and Order and
to give direction to City staff on whether an appeal should be filed.
If you should have any questions in regard to the City's request for this extension, please fee!
free to contact me at the above telephone number or via facsimile (319-589-4149).
Sincerely,
J;;;4 KaL
Michael A. Koch
Public Works Director
MAK/vjd
Sent Via Facsimile
cc: Michael C. Van Milligen, City Manager
Service
P<,"ple
Integrity
Rcspunsibilily
hllk'v.1tkm
T"ilmWOl'k
- -- '-- - ...
Engineering Division
50 West 13th Street
Dubuque, Iowa 52001486-1
(319) 5894270
(319) 58941-t9 FAX
DUB~E
~7~~
July 10, 2000
Mr. Thomas F. Jackson
Iowa Department of Transportation
Modal Division
800 Lincoln Way
Ames, IA 50010
t~l?'1
RE: Train Speed Ordinance - Docket No. RR-RO-00-1
Dear Mr. Jackson:
The City acknowledges the receipt of the Iowa Department of Transportation's Decision and
Order on the City of Dubuque's May 9, 2000 request to lower the maximum allowable train
speeds through the City of Dubuque.
The decision on the City's request to approve the City's 1976 ordinance limiting the speed of
freight trains to 25 miles per hour was served upon the City on June 21, 2000. According to
the Order, included Decision, the City is allowed twenty (20) days from the service date of the
Order to file a written statement contesting the Department's Order. This would allow the City
to contest the finding until July 11, 2000.
Since the initial request to lower the maximum allowable train speeds came from the City
Council, I am requesting an extension of the appeal period to allow time for the City Council
to consider whether to appeal the Decision. The City Council will meet next on July 17,2000;
and therefore, I would request the deadline for filing an appeal be extended until July 21,
2000. This would allow the City Council sufficient time to review the Decision and Order and
to give direction to City staff on whether an appeal should be filed. . .
If you should have any questions in regard to the City's request for this extension, please feel
free to contact me at the above telephone number or via facsimile (319-589-4149).
Sincerely,
t;;;4/(wL
Michael A. Koch
Public Works Director
MAK/vjd
Sent Via Facsimile
cc: Michael C. Van Milligen, City Manager
~rvice
People
Integrity
Responsibility
Innovation
Teamwork
CITY OF DUBUQUE, IOWA
MEMORANDUM
tory
July 9, 2000
TO:
Michael C. Van Milligen, City Manager
FROM:
Michael A. Koch, Public Works Director (i\1 V ~
n "\ L>\~
Train Speed Ordinance
SUBJECT:
This is to advise you that on June 21, 2000, the City was notified that the Iowa
Department of Transportation denied the City's request to lower the maximum speed
allowance for freight trains through the City.
It was lOOT's finding that the City did not provide any documentation for the lower
speed other than "general concerns for safety". The considerations taken into account
by lOOT include:
a. Traffic density and speed.
b. Accident frequency.
c. Causes of accidents.
d. Obstructions for visibility.
e. Traffic controls at crossings.
f. Population density.
g. Resulting burden on the rail transportation system.
h. Resulting benefit to residents of the political subdivision.
lOOT has decided previous cases by determining whether a particular local safety
hazard existed and whether the ordinance would eliminate or reduce the hazard.
lOOT's ruling indicated that the City did not establish the existence of a local safety
hazard and indeed there have been no accidents at the Hawthorne Street crossing,
which was the area of greatest concern of the City for safety.
"
The City has until July 11 to contest lOOT's finding; however, without additional
-- factual information to back up the City's request, I see no chance that lOOT would
alter its ruling.
Please let me know if you have any questions relating to this matter.
cc: Barry Lindahl
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STATE OF IOWA
IOWA DEPARTMENT OF TRANSPORTATION
MODAL DIVISION
. .. 'f:. S::RVEO.6 -;;2( ~(J()
)
IN THE MATTER OF: )
ORDINANCE REGULATING THE SPEED )
OF TRAINS WITH IN THE CITY OF )
DUBUQUE, IOWA )
)
CITY OF DUBUQUE, IOWA )
Petitioner )
)
v. )
)
I & M RAIL LINK, LLC et al )
Respondents )
)
DOCKET NO. RR-RO-OO-l
DECISION
AND
ORDER
STATEMENT OF THE CASE
On September 13, 1999, the City of Dubuque (City) pursuant to Iowa Code Section
327F.31, filed with the Iowa Department of Transportation (Department), a request for the
approval of Section 39-1 of the City's Code of Ordinance relating to the speed of trains. The
ordinance was passed in 1976 and was submitted to the Department under the provision in
327F.31 requiring that:
"Any speed ordinance or resolution adopted by a political subdivision of the state prior to
July 1. 1988, which has not been approved by the department shall be referred to the
department by the political subdivision and shall be in full force and effect upon approval
of the ordinance or resolution by the department."
The Department notified I & M Rail Link, LLC (I & M), Chicago, Central and Pacific
Railroad Company (CCP), and Burlington Northern Santa Fe Railroad Company (BNSF), the
affected railroads (Railroads), and the City that all parties would have 30 days in which to submit
position papers to the Department before the Department issues an order approving or
disapproving the ordinance.
ISSUE
The issue is whether the Department should approve the City's train speed ordinance.
SUMMARY OF THE EVIDENCE
The City seeks Department approval of Section 39-1 of the Code of Ordinance of the City
of Dubuque, Iowa, relating to the speed of trains which reads as follows:
"Sec. 39-1 Speed restrictions _p_
No passenger train shall be operated over and upon the grade crossings in the city
at a speed of greater than thirty (30) miles per hour, nor any freight train at a speed
greater than twenty-five (25) miles per hour."
The City submitted a brief position paper stating general concerns about grade-crossing
safety, noise, and the "greater potential of a derailment, possibly involving hazardous
chemicals". The City's position paper did not include any evidence in support of its position or
establishing a local safety problem that would be addressed by the train speed ordinance.
The position papers submitted by the affected railroads are parallel in their arguments and
\\'ill be considered together. Railroads present a range of arguments challenging the ordinance on
the following grounds:
1. that the ordinance is without effect because the authority of the City and the
Department are preempted by the federal authority to regulate the operations of trains;
2. that the ordinance violated the Commerce Clause of the United States Constitution;
3. that the ordinance and the local conditions which it addresses do not provide sufficient
evidt:nce for the Department to approve the ordinance under state law and administrative rules.
IMRL, in its position paper and in the accompanying Affidavit of Scott F. Woodard,
Chief Engineer of IMRL, establishes that a portion of its trackage within the City of Dubuque is
classified as Class III track by the Federal Railroad Administration (FRA) under Part 213 of Title
49 of the Code of Federal Regulations, that the FRA limits the speed on Class III track to 40
miles per hour, and that IMRL operates on a portion of the Class III track in Dubuque at speeds
up to 40 miles per hour.
FINDINGS OF FACT
In consideration of the information submitted in this proceeding I hereby find that:
1. The City passed an ordinance in 1976 limiting the speed of freight trains within the
City of Dubuque to 25 miles per hour.
2. The City has requested that the Department approve the ordinance under Iowa Code
327F.31.
3. Portions of the IMRL track in Dubuque is classified by the FRA as Class III track.
Train speed on Class III track is limited by the FRA to 40 miles per hour.
4. The City has not established a local safety hazard that would be remedied in whole or
in part by the establishment of a more restrictive speed limit.
DISCUSSION
The Department is charged under Iowa Code Section 327F.31 with the responsibility to
review and approve or disapprove ordinances or resolutions of political subdivisions relating to
train speed. The Department has adopted rules at Iowa Administrative Code 761-800.15 setting
forth procedures for that review. The rules list factors that the Department may consider in
making a decision. The list includes, but is not limited to:
"a. Traffic density and speed.
b. Accident frequency.
c. Causes of accidents.
d. Obstructions to visibility.
e. Traffic controls at crossings.
f. Population density.
g. Resulting burden on the rail transportation system.
h. Resulting benefit to residents of the political subdivision."
The Department has decided previous cases in the context of this authority by determining
whether a particular local safety hazard exists; whether the ordinance will eliminate or reduce the
hazard; and whether the ordinance will create an undue burden on interstate commerce.
The City, in its position paper does not establish the existence of a local safety hazard.
They cite a range of accident rates at grade crossings and assert by implication that the present
low rates would be "compromised by allowing faster trains." The City also cites concerns
expressed by citizens that there would be a "greater potential of a derailment, possibly involving
hazardous chemicals." None of these concerns were supported by direct evidence or argument.
Railroads, in their position papers, argue that the Department does not have the authority
to approve the ordinance because the federal authority over the operation of trains preempts the
authority put forth by both the City and the Department. The Federal Railway Safety Act
(FRSA), specifically at 49 U.S.C. g 20106, provides a savings clause providing that:
"A State may adopt or continue in force an additional or more stringent law, regulation,
or order related to railroad safety when the law, regulation, or order--
(1) is necessary to eliminate or reduce an essentially local safety hazar~;
(2) is not incompatible with a law, regulation, or order of the United States
Government; and
(3) does not unreasonably burden interstate commerce."
The Department holds that its action in approving a train speed ordinance constitutes an "order
related to railroad safety" and is permitted under the federal statute although it is subject to
stringent conditions. The Department will hold the present ordinance to close scrutiny under
these conditions. In any case, the Department is not competent to conclude that a state statute
specifically directing its activities is preempted by federal law: Such a determination is more
appropriate by the Iowa General Assembly or the courts.
Railroads go on to argue that City's train speed ordinance violates the Commerce Clause
of the United States Constitution and is, therefor, without effect. This argument is related to the
third savings clause in FRSA allowing a state order that "does not unreasonably burden interstate
commerce." It seems clear that restricting speed to limits lower than allowed under federal
regulation would provide a burden to interstate commerce and that that burden would be
unreasonable if the ordinance does not both address a local safety problem and provide sufficient
relief to outweigh the burden. The City has neither identified a local safety problem nor shown
what relief would be provided by the ordinance.
The final area of argument by Railroads is that the City's train speed ordinance should
not be approved by the Department because the City has not established a case under lAC
761-800.15. IMRL presented responses to all of the factors listed in the rule, arguing that no
local safety hazard exists.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact and Discussion, I conclude, as a matter of law
that the ordinance is not "necessary to eliminate or reduce an essentially local safety hazard" (49
U.S.C. 920106 (1). The Department, therefor, has no basis for approving the ordinance under
Iowa Code 327F.31 and lAC 761-800.15.
ORDER
1. Section 39-1 of the City's Code of Ordinance relating to the speed of trains is
disapproved.
2. This decision shall be final unless a written statement contesting the Departmant's
Order is filed with the Department within twenty (20) days from the service date of this Order.
Dated this 21st day of June, 2000.
IOWA DEPARTMENT OF TRANSPORTATION
MODAL DIVISION
THOMAS F. JACKSON
CERTIFICATE OF SERVICE
The undersigned certifies that on the ~ daY~ !,JYU-- ,2000, the
attached document was served upon all parties to RR-RO-OO- as listed below by depositing a
copy thereof in the U.S. Mail, postage prepaid.
G~MA'~~' d
Michael Koch
Public Works Director
City of Dubuque
50 West 13th Street
Dubuque,IA 52001-4864
Charles Webster
Canadian NationallIllinois Central
455 North Cityfront Plaza Drive
Chicago,IL 60611-5504
Michael Thrall
Nyemaster, Goode, Voights, West,
Hansell & O'Brien
700 Walnut, Suite 1600
Des Moines, IA 50309-3899
James Helenhouse
Fletcher & Sippel LLC
Two Prudential Plaza, Suite 3215
180 North Stetson Avenue
Chicago,IL 60601-6721
~ 810~~: ~~~~~~~t of TranS~~~~!~n
~ Fax: 515-239-1915
June 19,2000
City of Dubuque
c/o Michael A. Koch
Engineering Division
50 West 13th Street
Dubuque, Iowa 52001-4864
I & M Rail Link, LLC
c/o James D. Helenhouse
Two Prudential Plaza, Suite 3125
180 North Stetson Avenue
Chicago, Illinois 60601-6721
. Chicago, Central & Pacific Railroad
c/o Charles W. Webster
455 North Cityfront Plaza Drive
Chicago, Illinois, 60611-5504
Burlington Northern Santa Fe Railroad
c/o Michael W. Thrall
700 Walnut Street, Suite 1600
Des Moines, Iowa 50309-3899
Gentlemen:
RE: Docket No. RR-RO-OO-l, Request for Approval of Train Speed Ordinance, City of
Dubuque, Iowa.
Enclosed please find copies of all position papers that have been filed with the Iowa
Department of Transportation in the above-referenced matter.
The Department is currently reviewing the information and will issue an order upon
completion of its review. All parties will receive notice of the Department's order by
certified mail.
Respectfully,
9-~ / .-<i~
James L. Gibson
Rail Regulation and Operations
Rail Transportation Office
Attachments
(:g'&.. Iowa Department of Transportation
~1800 Lincoln Way, Ames, Iowa 50010 515-239-1549
. "oi'~.'!f,. Fax: 515-239-1975
April13,2000
Corporation Service Company
729 Insurance Exchange Building
Des Moines, Iowa 50309
Dear Corporation Service Company:
RE: Docket No. RR-RO-OO-l, Request for Approval of Train Speed Ordinance, City of
Dubuque, Iowa.
As Registered Agent for the I & M Rail Link, LLC in Iowa, you are hereby notified that
the City of Dubuque, Iowa, pursuant to Io",:"a Code Section 327F.31, has requested Iowa
Department of Transportation approval of City Ordinance No. 39-1 which regulates the
speed of trains passing through the city of Dubuque, Iowa. (copy attached)
In the process of reaching a decision on this matter the Department is required to notify
the affected railroad(s).
In accordance with Iowa Administration Code 761-800.15(3) the I & M Rail Link, LLC
and the City of Dubuque shall have thirty (30) days in which to submit position papers to
the Department.
Please be advised that position papers, if any, should be filed with the Rail Transportation
Office, Iowa Department of Transportation, on or before thirty (30) days after your
receipt of this letter. This letter will serve as official notice in this matter.
PLEASE TAKE NOTICE TO THE ABOVE AND GOVERJ.~ YOURSELF
ACCORDINGLY.
Sincerely,
i1__ ~ JJ. /
';f?'hvU--cV t/---. ~ ~~
{/ James 1. Gibson
Rail Regulation and Operations
Rail Transportation Office
t;~
~
Iowa Department of Transportation
800 Lincoln Way, Ames, Iowa 50010 515-239-1549
Fax: 515-239-1975
April 13, 2000
.tvllchael A. Koch
Public Works Director
City of Dubuque
50 West 13th Street
Dubuque, Iowa 52001-4864
Ken Koff
v.P. of Operations
I & M Rail Link, LLC
1910 East Kimberly Road
Davenport, Iowa 52807
Dear :Mr. Koch and :Mr. Koff:
RE: Docket No. RR-RO-00-1, Request for Approval of Train Speed Ordinance, City of
Dubuque, Iowa.
On March 17,2000, the City of Dubuque, Iowa, pursuant to Iowa Code Section 327F.31
submitted a request for Iowa Department of Transportation approval of City Ordinance No.
39-1 (copy attached) regulating the speed of trains passing through the city of Dubuque,
Iowa.
In the process of reaching a decision on this matter the Department is required to notify the
affected railroad( s).
In accordance with Iowa Administrative Code 761-800.15(3) the City of Dubuque and the
affected railroads shall have thirty (30) days in which to submit position papers to the
Department.
Please be advised that position papers, if any, should be filed with the Rail Transportation
Office, Iowa Department of Transportation, on or before thirty (30) days after your receipt
of this letter. This letter will serve as official notice in this matter.
PLEASE TAKE NOTICE TO THE ABOVE AND GOVERN YOURSELF
ACCORDINGL Y.
Sincerely,
O-~~.u d .Jj j~
II ; ames L. Gibson
Rail Regulation and Operations
Office of Rail Transportation
cc: Michael C. Van Milligan, City .Manager
Tom Jackson, Iowa Department of Transportation
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THE CITY OF: - '\
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D, -l f n 1 :.c)! r r:
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Engineering Division
30 West 13th Street
Dubuque, Io,,'a 52001-4864
(319) 589-4270
(319) 389-4H9 FAX
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May 9, 2000
'J,~
Mr. James L. Gibson
Rail Regulation & Operations
Office of Rail Transportation
Iowa Department of Transportation
800 Lincoln Way
Ames, IA 50010
RECEIVED
MAY 11 2000
RAIL TRANSPORTATION
RE: Docket No. RR-RO-00-1, Request for Approval & Train Speed Ordinances,
City of Dubuque, Iowa
-
Dear Mr. Gibson:
On September 13, 1998, the City of Dubuque requested that the Iowa Department of
Transportation approve City Ordinance No. 39-1 regulating train speeds through the
City, a copy of which is attached. This Ordinance was passed in 1976. The City's
Ordinance limited freight trains to 25 miles per hour through the City.
The City is concerned about the notification of increased train speeds issued by the
I&M Rail Link on September 7, 1996. In its press release, I&M indicated that they
intended to begin running trains at speeds up to 40 miles per hour through Dubuque,
a possible increase in 15 miles per hour.
The City is concerned with the safety of its at-grade crossings with this increase in
speeds. According to the September 15, 1999, lOOT report of at-grade rail crossings
in Dubuque, the Predicted Accident {PAl Rates for all the crossings through Dubuque
range only from a high of 0.0484 to a low of 0.0002. The City of Dubuque does not
want to see this safety level compromised by allowing faster trains.
~r...ice
People
Integrity
Re~ponsibility
lnnov<ltion
Te<lmwork
Mr. James L. Gibson
Page 2
May 9, 2000
The City Council, City Manager, and City staff have reviewed several calls, particularly
from residents along the northerly section of the I&M tracks who are concerned for
their safety, given the close proximity of their homes to the tracks. They are also
concerrl'ed about additional noise, and the greater potential of a derailment, possibly
involving hazardous chemicals. Some of these letters are attached.
#!
The City of Dubuque feels very strongly that the freight trains should continue to be
limited to 25 miles per hour, as has been the case since at least 1976, and that City
Ordinance 39-1 be approved .by the Iowa Department of Transportation. Your
assistance in keeping these at-grade rail crossings as safe as possible would be
appreciated. Should you have any questions, you may reach me at 319-589-4270.
Sincerely, .
t1:P)~
Michael A. Koch
Public Works Director
MAK/vjd
Via Facsimile Transmission
cc: Michael C. Van Milligen, City Manager
Barry Lindahl, Corporation Counsel
Bill Schlickman, Engineering
A ttachs.
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Tl-lE em OF ~
DUB tJ-E2UE
Engineering Division
50 West 13th Street
Dubuque. Iowa 52001-4S6-t
(J19) 589-4270
(319) 589-4H9 FAX
5J.r..r7<k. 5f~
September 13, 1999 ];;>dI
Mr. Richard E. Kautz, P.E.
Development Engineer
Iowa Department of Transportation
East Central Iowa Transportation Center
430 Sixteenth A venue SW
Po Box 3150
Cedar Rapids, IA 52406-3150
-:"
RE: Train Speed Limits
Dear Dick:
It has come to the City of Dubuque'.s attention that Section 39-1 of the City of
Dubuque Code of Ordinances limiting train speeds through the City may require Iowa
Department of Transportation approval.
The City Ordinance (Section 39-1) prohibits train speeds greater than 30 mph for
passenger trains and 25 mph for freight trains.
The City has recently been notified by I & M Rail Link, in a letter dated September 7,
1999, a copy of which is attached, may begin running trains through the City of
Dubuque at 40 mph as early as September 10, 1999.
Section 27F.31 of the Code of Iowa states that local ordinances regulating train
speeds are subject to the approval of the Department of Transportation. As of this
writing, the City can find no verification that the City's Ordinance was ever submitted
or approved by the Department..
The City of Dubuque is hereby submitting a copy of Section 39-1 of the City's Code
of Ordinance and requesting that the ordinance be approved under the provisions of
the Code of Iowa, Section 27F.31. Please advise if you need further information
regarding the City's request at this time.
Sincerely,
'l;!dKd
Michael A. Koch
Public Works Director
Attach.
cc: Michael C. Van Milligen, City Manager
~rvice
People
Integrity
Responsibility
Innovation
Teamh'ork
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Sec. 39-1. Speed restrictions.
No passenger train shall be operated over and
upon the grade crossings in the city at a speed of
greater than thirty (30) miles per hour, nor any
freight train at a speed greater than twenty-five
(25) miles per hour.
(Code 1976, 9 32-2)
Sec. 39-2. Unlawful deposits.
No debris or substances of any kind shall be
deposited or permitted to be deposited upon any
street where railroad tracks are located and where
cars are placed to be loaded or unloaded either by
abutting owners or occupants of property or other
persons.
(Code 1976, 9 32-3)
"--"-
( '.
Sec. 39-3. Maintenance of crossings, rights-
of-way.
(a) Notice to repair. Whenever the councilor
manager shall consider repairs necessary Upon
street, avenue or alley crossings or rights-of-way
occupied by the railroad company operating within
the city, the council or manager shall notify such
company to make the required repairs, which no-
tice may be served upon or mailed to any officer of
the company and shall state the time and place
when and where such repairs shall be made and
prescribe the materials with which such repairs
shall be constructed.
(b) Performance of work by city Upon company's
foilure to make repairs after notice. All repairs to
railroad crossings or rights-of-way ordered made
by the councilor manager shall be fully performed
without delay at the expense of the company so
notified. However, should repairs be ordered and
not made by any company the councilor manager
shall proceed to have such repairs made.
(c) Collectian of costs of repairs made by city.
The expense of repairs made by the city pursuant
to paragraph (b) of this section shall be charged to
the company and collected, if necessary, by suit of
any court of com~tent jurisdiction.
Cd) Manner of repairs; materials; superoisioTL
The manner in which the repairs provided for in
paragraph (a) of this section shall be made and
n
CITY Ci=DINFJ'.CE
RAILROADS
~ 394
the materials to be used shall be designated by
the manager and the work shall be performed
under the supervision of the manager and the en-
gineer.
(e) Proration of expenses between railroads_
Whenever repairs are ordered to be made, pur-
suant to this section, at an-y crossing which is used
by more than one railroad, each railroad shall
bear such proportion of the expense thereof as the
amount of space occupied by such railroad bears
to the whole amount of repairs ordered. The man-
ager shall determine the amount of repairs which
each road shall make and the manager's decision
shall be final.
(f) Effect of section as to previous grants. Wher-
ever grants to railroad companies, made previous
to August 2, 1920, prescribing the manner in
which repairs at railroad crossings shall be made
are in conflict with this section, the same ere
hereby repealed and the provisions of this section
are intended to supersede the same.
(Code 1976, 9 32-4)
Sec. 39-4. Use of certain track as team track
restricted.
Track No.3 located upon Jackson Street in the
city and extending from Sixth Street to Eleventh
Street and owned and constructed by the TIJinois
Central Railroad Company shall not be used as a
"team track" for the loading or unloading of rail-
road cars thereon; provided, however, that should
a request be made upon any railroad company by
the owner or-occupant of abutting property to place
a car to be loaded or unloaded on said track oppo-
site or in front of such property, then and in that
event cars may be loaded or unloaded upon such
track, but the same shall be so loaded or unloaded
only in front of or opposite the abutting property
whose owner or occupant has made the request;
provided, further, that, should any person other
than abutting owner or occupant desire the priv-
ilege of loading or unloading cars upon such track,
such person shall first procure the consent of the
owners or occupants of abutting property on both
sides of the streets where it is desired to load or
unload such car, and if such consent is obtained
such car may be loaded or unloaded by such par-
2477
O?/07/99 ~~ 09:17 F.~ 1 ~19 J44 77J~
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I~ RAIL LI4'<X D;C.
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September 7, 199.9
Telegraph Herald
801 Bluff Street
Dubuque, lA 52001
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RE: Press release
The I & M Rail Link is upgrading their track and signal equipment through
Dubuque. I & M Rail Link Northem Division Superintendent, Steve Norton
said that speeds could be Increased as soon as September 10th. Track
speeds are governed by the condition of the track and equipment. The
upgrades will enable the I & M to run trains at speeds up to 40 MPH
through Dubuque. I & M Rail Link's maximum track speed is currently
20MPH through Dubuque. Todd Law who is both an Operation .Lifesaver
presenter and J & M 's Chief of Police, warns the public to Look, Listen and
L1ve! Several rail grade crossings in Dubuque will be affected to include
the Lincoln Ave and Hawthorne crossings.
Yours truly,
--:/-L/~
Todd Law
IMRL Chief of Police
cc:
Ken Koff
Steve Norton (!CU) S'lL- UJ~
Kerth BeckIe
Mark Milewsky
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Trninmnster
I &M Rail Link
Mnrquette, Iowa 52158
Monica Meissner
1902 Garfield A venue
Dubuque, Iowa 5200 I
Dear Sir or Madam:
This letter is in reference to the 40-mph train speed within city limits, past a residential area and through
crossings without signal lights or gates. This is not a very good idea; in fnct, this is very short sighted.
Behind our house, at the bottom of a steep bank, with industrial buildings located on the side opposite the
steep bank, lie the I&M Rail Link tracks. The tracks run through land that we Own with the railroad having
a Right of Way agreement. As of yet, I have not r.esearched what liberties the Right of Way agreement
gives the railroad. But I wonder does it give the railroad the freedom to travel as fast as they want without
regard to safety? Does it give the railroad the right to travel through residential areas carrying hazardous
substances that may endanger our lives in case of a leak or an accident? The faster the train, the greater the
risk of an accident, and the greater the noise. For these reasons, safety and noise, I'm requesting no
increase in the speed of trains through our town. '
You can reach me by mail at my home address above; or call me at (319) 582-230 I. I look forward to your
swift artention CO this marter.
Sincerely,
~r1~ ht~
Monica Meissner
Cc: Mayor Terry Duggan
City Manager Mike Van Milligan
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~ From the desk of...
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FLETCHER & SIPPEL LLC
Two Prudential Plaza. Suite 3125
180 North Stetson Avenue
Chicago, Illinois 60601-6721
Phone: (12) 540-0500
Fax: (12) 540-9098
www.fletcher-sippel.com
James D. Helenhouse
(312) 540-9450
j helen house@fletcher.sippel.com
May 18, 2000
RECEIVED
MAY 2 2 200a
RAIL TRANSPORTATION
Modal Transportation Division
Office of Rail Transportation
Iowa Department of Transportation
800 Lincoln Volay
Ames, IA 60010
Re: Iowa Department of Transportation
Docket No. RR-RO-OO-l
1& M Rail Link, LLC's Position Paper
In Opposition To Dubuque City Ordinance No. 39-1
Dear Sir or Madam:
Enclosed please find the original Affidavit of Scott F. Woodard. A copy
of the Affidavit was mailed to you on May 17, 2000, with I & M Rail Link, LLC's
Position Paper in Opposition To Dubuque City Ordinance No. 39-1.
If you have any questions, please call me at 312-540-9450. . Thank you in
advance for your assistance in this matter.
Sincerely,
Ajr~
/James D. Helenhouse
JDH:lmd
Enclosure
cc: James L. Gibson, Esq. (w/o enc.)
Walter Orze, Esq. (w/o enc.)
Mr. Scott F. Woodward (w/o enc.)
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IOWA DEPARTMENT OF TRANSPORTATION
DOCKET NO. RR-Ro.OO-l
AFFIDAVIT OF SCOTT F. WOODWARD
~ Scott F. Woodward being first duly !\1I'om, on oath deposes and says:
1. I am the ChicfEngineer for 1& M Rail Link, LtC ("IMRL"). I have full
knowledge of the information contained in ~s affidavit and could testify to these matters if
called to do so.
2. IMRL is an interstate rail carrier. It owns track in and operate trains
through Minnesota, Iow~ Mi3scuri, Wisconsin W1d Illinois.
3. IMRL operates tmee nonh~ound (compass north) trains through Dubuque
daily at apprcxi;natC!ly ~.2:P9. a"~'ll ,3.;qO..~Jll.,.and ~.:OO.p.m,. lMRL operates three southbound
trains through Dubuque daily at approximately 9;00 a.m., 11 :00 a.m., and 3:00 p.m. Many of
these trains and/or the cars on the train originate in another state and/or have destinations in
another state.
4. In Dubuque, IMRL operates over track owned by IMRL and track owned
by Chicago Central &. Pacific Railroad rCC&P)'J). w track map, attached hereto as Exhibit A
These tracks run through an industri~ area along the Mississippi River on the east side of
Dubuque. This area hcu a relatively low level of motor vehicle traffic. IMRL does not operate
through any residenti:l or highly populated areas.
5. South of Dubuque, IMRL begins opera.ting on CC&P track at milepost
41.7 and continues on GC~ ~c:Jc in.I!IJbuque until milepost 43.6. This section oftraclc is
highlighted pink on Exhibit A This section of CC&P track has two grade crossings, both of
which are protected by signals and gates. While operating between milepost 41.7 to milepost
43.6, IMRL complies with Cc&p's timetable speed of25 m.p.h.
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6. From milepost 43.6 and continuing through Dubuque. IMRL operates over
its own main line track. This section of track is highlighted blue on Exhibit A. On this section
ofttack. IMRL operates pursuant to its timetable &peed of2S m.p.h. The grade crossings in this
section of track and the protection at these cro5Sings is .set forth in the following table:
Street ProteCtion
.. Seventh Street" .. ...... .... . Gates and 'Flashers'
Nmth Street Gates and Flashers
Eeventh Street Gates and Flashers
Twelfth Street Flashers
Fourteenth Street Flashers
FIfteenth Street FIa:lhers
Sixteenth Street Flashers
7. From milepost 44.5 continuing through the rest of Dubuque; IMRL
operates at a maximum speed of 40 m.p.h. on jts main line tri!.ck This section of track is
highlighted yellow on Exhibit A In this final section of track there are only two grade crossings:
Hawthorne Str~t ~d ~~C9.ln. A\!C1):u.e..... IJaWthome Street.is protected by flasher,> while LmCQIn
Aveme is protected b)' crossbucks.
8. There a~ no unusual \'i&Dility problems at any of the crossings over
which IMRL operates in Dubuque. The crossings in Dubuque are typical of grade crossings
throughout the state, over many ofwhic:h IMRL Dperates. at higher speeds. To my knowledge
- l:MRL has not had any grade crossing accidents at any of the crossings on its main line track: or
on CC&;P)s main line track in Dubuque. On March 20. 2000. IMRL had a gnde crossing
accident on an industrial lead track at Kerper Boulevard. The train was traveling 5 m.p.h. when
a. motorist nying to beat the train to the crossing collided with the train. In my opinion. given the
2
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train trsffic volumes at these crossings" the signal protection and the fact that lMRL bas not had
any accidents at its mfUj;.lin~ t~Ck" g~~" Q-~Ssm~' i~ D~buque, a lower speed is not warranted.
9. As Chief Engineer for IMR.L, I am responsible for supervising the
construction and maintenance of1MRL's track and road~. I am also responsible for ensuring
that lMRL' s track complies with an applicable requirements, including those that arc imposed by
the Federal Railroad Administration ("FRA").
] O. The FRA has established 8. dasstfication system for classifying all railroad
track in the United States. The sy5tem established six (6) classes of track, Class I through VI.
These classifications arc set out in the FAA Track Safety Standard:i which are contained in Part
213 of Title 49 of the Code ofFederaI Regulations.
11. The classification of the track depends on the: roadbed, the track geometry,
and the track stIuctUre-as 5~ forth by" tii~ ~~i; "in p~ "213. IMRL'!l track in the City of
Dubuque is Class m. Pursuant to 49 C.F.ll. ~ 213.233, Class m track must be inspected two-
times-a-week to assure compliance with the requirements Part 21:;. In addition to visual
inspections performed twice a wee~ IMR.L inspects its track with a geometry car. which
provides a computerized readout of the geometric conditions of the track, and a rail detector.
which is an ultrasonic detector used to identify internal defects. OIl at least an annual b~.
12. In 49 C.F.R. ~ 213.9, the FRA has established a maximum allowable
operating speed for freight trains and passenger trains for each of six classes of track. Thl!
maximum allowable operating speed set by the FRA for freight train3 operating on Class m
4 track is 40 nJ.p.h. Although the FR.A speed regula.ticms allow IMRL to opo-ateat 40 m.p.h. over
its track in DubUque) beCause ofthc'configur~tion' of the el~ctroPic circuitry and the presence of
,
cU1Ves~ IMRL has set a timetable speed of25 m.p.h. between mileposts 43.6 and 44.5. lMRL
3
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operates at up to speeds of 40 m,p,h. on the remainder ofrts track in Dubuque. JMRL's
tnnsportation officers use radar to check compliance with its timetable speed and thfS speed
limits set forth in 49 C.F.R. ~ 213.9.
13. Ml.1niclpaI regulation of train speeds has a negative impact on safety. lfa
m.in maintains a. steady ~ there is less of a chance of a derailment, i.e.. if a train must a10w
down for a municipal speed restriction the chance of l! derailment increases. Additionally, ~
is a greater likelihood rJ! a ~~ ~s.s~g. ~~d~t. wh.~ rap.rcads are forced to comply with
local speed ordinances. There are two main reasons for thi3. First, when a train operates at a
slower speed, it occupies grade crossings for 11 longer period of time. Many grade crossing
acci.denu involve situations where the car hits the train. If a train is occupying a crossing for a
longer period of time, this increases the window ofexpo!ute in which a ear might hit a train.
Sccon~ when a train travels at a slower speed, many motomts have a tendency to disregard the
grade crossing warnings. k. they are mc~ likely to try to beat the train to the crossing. Again,
this inaeases the risk of a grade: crossUlg accident.
14. Local train speed restrictions }lave several adverse effects on. railroad
operations. Slowing the train for local restrictions causes additional wc~r and tear on the track
and tail equipment. Th1s r~lt!l. in ~~g~c=.r .~aJ.nt~~C:l!l ~nd TCPair costs. Additionally. slowing
the train before entering an area restricted by a speed ordinance and accelerating upon leaving
the area resultS in higher:fuel costs. Local speed restrictions also c:ause longer travel times)
which in turn increase labor costs. ~ puts at risk the ability to connect with other carriers and to
.
- serve customers.
15. IMRL has alligniflcant investment in upgrading its track to and
maintaihing its track at higher cJassiDcations. For instance, IMRL has spent close to two
4
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millions dollars upgrading its track in Dubuque from Class I to Class ill track. IfIMRL is forced
to comply with local ordinances, such as City Ordina.nee 39-1, the return on these investments
are lost.
APFJANT FURTHER SA
SUBSCRtBFD AND SWORN TO
before me this I t::, day of May. 2000.
() ;),~~
.ph. Notary Public
My Cornrni!lSion expires: ~-2 7-0:2-
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CERTIFICA TE OF SERVICE
The undersigned attorney states that he caused a copy of I & M Rail Link,
LLC's Position Paper in Opposition To Dubuque City Ordinance No. 39-1 and Affidavit of
Scott F. Woodard to be served upon:
Modal Transportation Division
Office of Rail Transportation
Iowa Department of Transportation
800 Lincoln Way
Ames, IA 60010
and
James L. Gibson, Esq.
Iowa Department of Transportation
800 Lincoln Way
Ames, IA 60010
by depositing copies of the same in the United States First Class Mail, postage prepaid, located at
180 North Stetson Avenue, Chicago, IL 60601 before the hour of5:00 p.m., this 17th day of May,
2000.
James D. Helenhouse
FLETCHER & SIPPEL LLC
Two Prudential Plaza, Suite 3125
180 North Stetson Avenue
Chicago, Illinois 60601-6721
Phone: (312) 540-0500
Fax: (31 Z) 540-9098
www.fletcher-sippel.com
James D. Helenhouse
(12) 540-9450
j helenhouse@flerche[-sippel.com
May 17, 2000
Modal Transportation Division
Office of Rail Transportation
Iowa Department of Transportation
800 Lincoln Way
Ames, IA 60010
RECEIVED
MAY 2 2 2000
RAIL TRANSPORTATION
Re: Iowa Department of Transportation
Docket No. RR-RO-OO-l
I & M Rail Link, LLC's Position Paper
In Opposition To Dubuque City Ordinance No. 39-1
Dear Sir or Madam:
Enclosed please find the following documents for filing with the Iowa
Department of Transportation in the above-referenced matter: I & M Rail Link, LLC's
Position Paper in Opposition To Dubuque City Ordinance No. 39-1 and a copy of the
Affidavit of Scott F. Woodard. I will send you the original Affidavit under separate
cover within the next couple of days.
I have also enclosed some of the principal authorities relied upon in I & M
Rail Link LLC's Position Paper and a list of the authorities enclosed.
If you have any questions, please call me at 312-540-9450. Thank you in
advance for your assistance in this matter.
Sincerely,
JDH:lmd
Enclosures
cc: James L. Gibson, Esq. (Copies of Position Paper and Affidavit Only)
Walter Orze, Esq. (w/enc.)
Mr. Scott F. Woodward (Copies of Position Paper and Affidavit Only)
J=es&~
IOWA DEPARTMENT OF TRANSPORTA nON
DOCKET NO. RR-RO-OO-l
I & i\'I RAIL LINK, LLC'S posmON PAPER
IN oPPosmON TO
DUBUQUE CITY ORDINANCE NO. 39-1
I. Introduction
On April 17, 2000, I & M Rail Link, LLC ("IMRL") was served with a letter from
the Iowa Department of Transportation (the "Department"), which indicated that the City of .
Dubuque, Iowa, pursuant to Iowa Code 9 327F.31, has requested that the Department approve
City Ordinance No. 39-1, which limits the speed of freight trains passing through the City of
Dubuque to 25 m.p.h.. Pursuant to Iowa ~dministrative' Code 761-800.15(3), IMRL is
submitting this position paper to the Department. In further support of its position, IMRL is also
submitting the affidavit of Scott F. Woodward, IMRL's Chief Engineer. It is IMRL's position
that the Department should not approve City Ordinance 39-1 because local and state regulation
of train speed is preempted by federal law and violates the Commerce Clause of the United _
States Constitution. Additionally, the factors that the. Department is to consider pursuant to Iowa
Administrative Code 761-800.15(4) in ruling on the city's request weigh heavily in favor of
disapproving the ordinance.
ll. General Facts
IMRL is an interstate rail carrier. It owns track in and operate t~ains through
Minnesota, Iowa, Missouri, Wisconsin and Illinois. Woodward Aff. at ~ 2. IMRL operates three
northbound (compass north) trains through Dubuque daily at approximately 12:00 a.m., 3:00
a.m., and 3 :00 p.m. IMRL operates three southbound trains through Dubuque daily at
approximately 9:00 a.m., 11 :00 a.m., and 3 :00 p.m. Many of these trains and/or the cars on the
train originate in another state and/or have destinations in another state. Woodward Aff at ~ 3
In Dubuque, IMRL operates over track owned by IMRL and track owned by
Chicago Central & Pacific Railroad ("CC&P"). Woodward Aff at ~ 4. These tracks run through
an industrial area along the Mississippi River on the east side of Dubuque. This area has a
relatively low level of motor vehicle traffic. IMRL does not operate through any residential or
higWy populated areas. Woodward Aff at ~ 4 .
South of Dubuque, IMRL begins operating on CC&P track at milepost 41.7 and
continues on CC&P track in Dubuque until milepost 43.6. This section of CC&P track has two
grade crossings, both of which are protected by signals and gates. While operating between
milepost 41.7 and milepost 43.6, IMRL complies with CC&P's timetable speed of 25 m.p.h.
Woodward Aff at ~ 5
From milepost 43.6 and continuing through Dubuque, IMRL operates over its
own main line track. On this section of track, IMR.L operates pursuant to its timetable speed of
25 m.p.h. The grade crossings in this section of track and the protection at these crossings is set
forth in the following table:
Street
Seventh Street
Ninth Street
Eleventh Street
Twelfth Street
Fourteenth Street
Fifteenth Street
Sixteenth Street
Woodward Aff at ~ 6.
Protection
Gates and Flashers
Gates and Flashers
Gates and Flashers
Flashers
Flashers
Flashers
Flashers
2
From milepost 44.5 continuing through the rest of Dubuque, IMRL operates at a
maximum speed of 40 m.p.h. on its main line track. In this final section of track there are only
two grade crossings: Hawthorne Street and Lincoln Avenue. Hawthorne Street is protected by
flashers, while Lincoln Avenue is protected by crossbucks. Woodward Aff at ~ 7.
There is nothing unusual about any of the crossings over which IMRL operates in
Dubuque, and Th1RL has had a history of relatively safe operations through Dubuque.
ID. An?:ument
The Department should not approve Dubuque City Ordinance 39-1 because: (A)
the ordinance and the procedure for approval of the ordinance, including the procedures set forth
in Iowa Code ~ 327F.31, are preempted by. federal law, (B) the attempted regulation of train
speed places an undue burden on interstate commerce in violation of the Commerce Clause of
the United States Constitution, and (C) the factors that the Department is to consider pursuant to
Iowa Administrative Code 761-800.15(4) in making a decision of whether to approve a train
speed ordinance weigh heavily in favor of disapproving City Ordinance 39-1. Each of these
arguments is addressed in the following subsections.
A. Federal Law Preempts City Ordinance 39-1
Federal preemption of state law is based upon the Supremacy Clause in Article
VI, Clause 2 of the United States Constitution, which forbids the enforcement of any state law
that conflicts with a valid federal statute. Fidelity Fed. Sav. & Loan Ass'n v. de la Cuest!!, 458
U.S. 141, 152-153 (1982). There are three types of preemption: (1) express preemption, where
Congress defines explicitly the extent to which a federal statute preempts state law; (2) field
preemption, where Congress' regulation of a field or the federal interest in a matter is so
pervasive that an intent to occupy the entire field can be inferred; and (3) conflict preemption,
where state law stands as an obstacle to the accomplishment of the purposes and objectives of a
federal statute. English v. General Elec. Co., 496 U.S. 72, 79 (1990). The overriding principle
3
guiding any detennination of federal preemption is whether Congress intended to preempt state
law. Id. City Ordinance No. 39-1 and the procedure for approval of the ordinance are preempted
under each of the three types of preemption via the ICC Tennination Act of 1995 ("ICCT A"),
Pub. L. 104-88, 109 Stat. 806 and the Federal Railway Safety Act ("FRS A"), 49 D.S.C. S 20101
et. seq.
1. The FRSA Preempts City Ordinance 39-1
City Ordinance No. 39-1 and the approval process relating to it, are expressly
preempted by the Federal Railway Safety Act ("FRS A"), 49 D.S.C. S 20101, et. seq. The FRSA
preemption clause provides:
Laws, regulations, and orders. related to railroad safetyl shall be
nationally uniform to the extent practicable. A State may adopt or
continue in force a law, regulation, or order related to railroad
safety until the Secretary of Transportation prescribes a regulation
or issues an order governing the subject matter of the State
requirement. A State may adopt or continue in force an additional
or more stringent law, regulation, or order related to railroad safety
when the law, regulation, or order -
(1) is necessary to eliminate or reduce an essentially local
safety hazard;
(2) is not incompatible with a law, regulation or order of the
United States Government; and
(3) does not unreasonably burden interstate commerce.
49 D.S.C. 920106. Thus, Congress expressly intended that the FRSA preempt all state railroad
safety regulation except for that which falls within one of the savings clauses.
The first savings clause, Le., where the Secretary of Transportation has not
regulated the area, does not apply to City Ordinance No. 39-1. The Secretary of Transportation
has established a classification system for all railroad track in the United States and has enacted
City Ordinance No. 39-1, a train speed ordinance, is "related to railroad safety." CSX
Transp.. Inc. v. City of Plymouth, 86 F.3d 626, 629 (6th Cir 1996).
4
regulations specifically designating operating speeds for each class of track. 49 C.F.R. S 213.9;
Woodward Mfat ~~ 10-12. IMRL's track in Dubuque is Class III. Woodward Aff at ~ 11. The
Federal Railroad Administration has set a maximum operating speed of 40 m.p.h. for freight
trains on Class ill track. Woodward Aff at ~ 12. Dubuque's more stringent ordinance, which
sets a speed limit of 25 m.p.h. for freight trains, cannot co-exist with the federal regulations
governing train speed. CSX Transp. Inc. v. Plymouth, _ F. Supp.2d _, 2000 WI.. 520672,
* 11 (E.D. Mich. 2000) ("There can be little doubt that to the extent the state statute regulates
speed, it is preempted by the FRSA, because the federal regulations cover the subject matter. ");
Southern Pac. Transp. Co. v. Baldwin. 685 F. Supp. 601, 603 (W.D. La. 1987); Consolidated
Rail Corp. v. Smith, 664 F. Supp. 1228, 123,6 (N.D. Ind. 1987).
Under the second savings clause, once the Secretary of Transportation has
prescribed a regulation governing the subject matter (in this case 49 C.F.R. 9213.9), the more
stringent state law is preempted unless it is established that the state law is necessary to reduce a
local safety hazard, is not incompatible with the federal law, and does not unreasonably burden
interstate commerce. City Ordinance No. 39-1 does not fall within the second savings clause
because it is not a state law, it is not necessary to eliminate a local safety hazard, it is
incompatible with federal law and legislative intent, and imposes an unreasonable burden on
interstate commerce.
The FRSA allows only a state law to remain in effect once the Secretary of
Transportation has prescribed a regulation relating to the same subject matter. Section 20106
gives no authorization for legislation or regulation to local governments. Moreover, each court
that has addressed the issue of whether 9 20106 permits a municipality to regulate train speed has
answered the question in the negative. See,~, Grand Trunk Western R.R. v. Merrillville, 738
F. Supp. 1205, 1207 (N.D. Ind. 1989); Covington v. Chesapeake & Ohio Ry., 708 F. Supp. 806,
5
808-09 (B.D. Ky. 1989); CSX Transp.. Inc. v. Tullahoma, 705 F. Supp. 385, 387-88 (B.D. Tenn.
1988); Chesapeake & Ohio Ry. v. Bridgman, 669 F. Supp. 823, 826 (W.D. Mich. 1987).
The City may argue that because City Ordinance No. 39-1 is subject to approval
by the Department, the ordinance is regulation by the state and not the municipality. However,
the mere approval by the Department of the city's ordinance does not magically transform the
municipal ordinance into a state law, regulation or order. Rather, state action for purposes of
9 20106 means active involvement by the state in the promulgation and enforcement of the state
rule, law or regulation. As noted by the United States District Court for the Northern District of
Indiana in Consolidated Rail Corp. v. Smith, "[s]ection 434 [the predecessor to 49 US.C.
920106] does not say a state may regulate by.ordinance. . .." 664 F. Supp. at 1237. Moreover,
if a municipal ordinance can survive preemption merely because it is approved by a state agency,
the Congressional purpose of making railroad regulation nationally uniform would be frustrated.
For example, even if the Department is involved in the approval of a city ordinance, it would not
be involved with the enforcement of the city ordinance. Thus, rather than being subject to just
state and federal authority, which Section 20106 contemplates, Th1RL is potentially subject to
separate regulation by every city, village, township, or other political subdivision along its track.
The case law is clear that "[s]eparate municipal regulation of speed is . . . greatly at odds with the
Congressional purpose ofunifonnity . . . ." Consolidated Rail Corp., 664 F. Supp. at 1238.
Even if City Ordinance No. 39-1 could be considered a state rule, law or order,
the ordinance is still preempted because it is not "necessary to eliminate or reduce an essentially
local safety hazard." An essentially local safety hazard is a condition that is unique to the
particular location and causes a unique concern relating to safety. The general physical
conditions of a railroad crossing do not constitute an essentially local safety hazard because these
6
conditions can be present in grade crossings and track areas throughout the entire state. See
O'Bannon v. Union Pacific R. Co., 960 F. Supp. 1411, 1421 (W.D. Mo. 1997) (alleged
inadequate warning devices, a steep grade, the angle of the crossing and the proximity of the
crossing to a nearby highway are not local safety hazards); Herriman v. Conrail. Inc., 883 F.
Supp. 303, 307 (N.D. Ind. 1995) (lighting in the area ofa crossing is not a local safety hazard);
Wright v. Illinois Central R. Co.. 868 F. Supp. 183, 187 (S.D. Miss. 1994) (vegetation, the grade,
the angle of the crossing and alleged inadequate warning devices are not local safety hazards);
Earwood v. Norfolk Southern Ry. Co., 845 F. Supp. 880, 888 (N.D. Ga. 1993) (multiple tracks
and rail cars obstructing the view of a train crew are not local safety hazards); Armstrong v.
Atchison Topeka & Santa Fe Ry. Co., 844' F. Supp. 1152, 1153 (W.D. Tex. 1994) (a high
vehicular traffic count is not a local safety hazard); Estate of Martin v. Consolidated Rail Corp.,
620 N.E.2d 720, 725 (Ind. App. 1993) (the physical conditions at a crossing are not local safety
hazards); Paddock, 571 N.W.2d 564, 566 (Mich. App. 1997) (alleged dangerous conditions at a .
crossing are not a local safety hazard); Emery v. Southern Ry. Co.. 866 S.W.2d 557, 559 (Tenn.
App. 1993) (a 20 foot high embankment obstructing the train crew's view is not a local safety
hazard); and Bakhuyzen v. National Railroad Passenger Corp., 1996 U.S. Dist. LEXIS 1884 at
*9-10 (W.D. Mich. 1996) (an obstructed view and alleged inadequate warning devices are not
local safety hazards). Rather, an essentially local safety hazard "must be a discreet and truly
local hazard, such as a child standing on the tracks or a motorist stranded on the crossing." See,
~ O'Bannon, 960 F. Supp. at 1420; Herriman, 883 F. Supp. at 307. Indeed, the Department
has held that obstructions to visibility, such as buildings, vegetation, and poor sight lines, and the
proximity of tracks to public parks, schools and occupied buildings do not constitute local safety
hazards. See,~, City of Guttenberg v. Soo Line Railroad Co., Docket RR-RO-93-1, Decision
and Order, dated November 17, 1993.
7
While Dubuque has not yet filed its position paper regarding City Ordinance 39-1,
it is highly unlikely that Dubuque would be able to identify local safety hazards that would.
justify a speed limit applicable throughout the entire city. In the event Dubuque does take the
position that a local safety hazard(s) does justify a speed limit throughout the entire city, IMRL
would certainly dispute whether the condition(s) do in fact constitute an essentially local safety
hazard. The evidence shows that there is nothing unusual or particularly unsafe about the grade
crossings over which IMRL operates in Dubuque. IMRL operates through an industrial area
along the Mississippi River in Dubuque. Woodard Aff at ~ 4. IMRL does not operate through
any residential or highly populated areas in Dubuque. Id. All but one of the grade crossings
over L\1RL's main route in Dubuque are. protected by gates and/or flashers. Id. at ~~ 5-7.
Moreover, IMRL has never had a grade crossing accident on its main line track in Dubuque.2 Id.
Finally, as an operational concern, IMRL travels at a maximum speed of25 m.p.h. over all of the
crossings, except for two, at which it operates at a maximum speed of 40 m.p.h. Woodward Aff
-
at ~~ 5-7. In light of the population density in the area, the signals at the crossings, the lack of
grade crossing accidents, and IMRL's operating speeds, the City would be hard-pressed to
identify a local safety hazard. In the absence of compelling evidence of a local safety hazard,
City Ordinance 39-1 must fail.
City Ordinance No. 39-1 i.s preempted for the additional reason that it is
incompatible with the regulatory framework of 49 C.F.R. 9213. As the Supreme Court of
Michigan explained,
While it is possible for trains to obey both the federal and
local limits, it is clear that enforcement of the much lower local
limit would substantially interfere with the carefully wrought
federal scheme. It is undisputed that trains take many miles and a
2
On March 20, 2000, IMRL had a grade crossing accident on an industrial lead track at Kerper
Boulevard. The train was traveling 5 m.p.h. when a motorist trying to beat the train to the
crossing collided with the train. WoodwardAff at ~ 8.
8
substantial amount of time to shift between substantially different
speeds. Authorizing local speed limits . . . would raise the specter
of a patch-work of conflicting local rules interfering with the
uniformity and smooth operation of the federal regulatory
framework.
Grand Trunk Western R.R. v. Fenton, 482 N.W.2d 706, 708. In publishing its track safety
standards, the Federal Railroad Administration ("FRAn) also explained that local train speed
ordinances are incompatible with the federal regulatory framework:
FRA's current regulations governing train speed do not
afford any adjustment of train speeds in urban settings or at grade
crossings. This omission is intentional. FRA believes that locally
established speed limits may result in hundreds of individual speed
restrictions along a train's route, increasing safety hazards and
causing train delays. The safe train maintains a steady speed.
Every time a train must slow down and then speed up, safety
hazards, such as buff and draft forces, are introduced. These kind
of forces can enhance the chance of derailment with its attendant
risk of injury to employees, the traveling public, and surrounding
communities.
FRA always has contended that Federal regulations
preempt any local speed restrictions on trains.
63 Fed. Reg. 33991, 33999 (June 22, 1998). Thus, in addition to being incompatible with the
federal interest in uniformity, . local speed limits also conflict with federal interests in safety, and
as such, are preempted.
Local regulation of train speed is preempted for the additional reason that it places
an undue burden on interstate commerce. While the City may argue that the effect .that City
Ordinance 39-1 has on commerce is not substantial, this misses the point. Allowing Dubuque to
regulate train speed would open the door for other municipalities to regulate train speed. The
cumulative effect of such patchwork regulation would be devastating to interstate commerce.
Local train speed limits interfere with interstate commerce because lower train speed increases
the risks of derailments and grade crossing accidents. Local train speed limits increase the cost
of interstate commerce in that compliance results in higher fuel, labor and maintenance costs,
9
and puts at risk a railroad's ability to serve its customers and to connect with other carriers.
Southern Pac. Transp. Co. v. St. Charles Parish Police Jury. 569 F. Supp. 1174, 1177 (E.D. La.
1983) (explaining that local train speed restrictions increase the risk of derailments and grade
crossing accidents and seriously impedes the efficient operation of railroads); see also
Woodward Aff. at ~~ 13, 14. Courts recognizing the burdens and dangers of local speed
regulation have concluded that local attempts to regulate train speed unduly interfere with
interstate commerce. Southern Pac. Transp. v. St. Charles Parish Police Jury, 569 F. Supp. 1174
(B.D. La. 1983) (holding that a train speed ordinance unconstitutionally burdened interstate
commerce); Ohio v. Schwart~ 435 N.E.2d 689 (Ct. App. Ohio 1980) (same). Because City
Ordinance 39-1 places an undue burden on. interstate commerce and approving the ordinance
would open the door for other municipalities to similarly place burdens on interstate commerce,
the ordinance and the approval process are preempted.
2. The ICCTA Preemots City Ordinance No. 39-1
City Ordinance No. 39-1 and the approval process are preempted by the rCCTA
Numerous courts have held that rCCT A preempts state law attempts to regulate rail
transportation. See,~, CSX Transp. v. Plymouth,. F. Supp.2d, 2000 WL
520672 (B.D. Mich. 2000) (holding that ICCTApreempts state blocked crossing statute);
Wisconsin Central Ltd. v. Marshfield, 99-C-0636-S, Memorandum and Order (E.D. Wis.
February 10, 2000) (holding that ICCTA preempts City's efforts to condemn property used in
rail transportation). As explained below, ICCT A similarly preempts Dubuque's attempts to
regulate train speed.
The rCCTA, which became law on January 1, 1996, abolished the Interstate
Commerce Commission and replaced it with the Surface Transportation Board ("STB"). The
ICCT A also amended and recodified the Interstate Commerce Act ("ICA"), 49 u. S. C. S 10101 et
~., the federal statute pursuant to which railroads have been and continue to be regulated.
10
Even before the ICCT A was enacted, it had long been recognized that regulation
of railroad operations and facilities was properly the function of the federal government and not
the states. As the Ninth Circuit stated in City of Auburn v. United States, 154 F.3d 1025, 1029
(9th Cir. 1998), cert. denied. 119 S. Ct. 2367 (1999):
Congress and the courts long have recognized a need to regulate
railroad operations at the federal level. Congress' authority under
the Commerce Clause to regulate railroads is well-established,
[citations omitted], and the Supreme Court repeatedly has
recognized the preclusive effect of federal legislation in this area.
One of the principal purposes of Congress in enacting the ICCT A was generally
to reduce the regulation of railroads and specifically to eliminate the few areas where states had
regulatory authority over railroad operations.' See CSX Transp.. Inc. v. Georgia Public Service
Comm.. 944 F. Supp. 1573, 1583 (N.D. Ga. 1996); .H.R. No, 104-311, 104th Congress, 1st Sess.
82-83 (1995), reprinted in 1995 u.S.C.C.AN. 793, 807-808. To achieve that purpose, Congress
granted to the STB exclusive jurisdiction over rail transportation and, as part of that grant,
-
enacted a broad preemption provision. Thus, as amended by the ICCTA, 49 U.S.C. 9 10501(b)
provides:
The jurisdiction of the Board over -
(1) transportation by rail carriers, and the remedies
provided in this part with respect to rates,
classifications, rules (including car service,
interchange, and other operating rules), practices,
routes, services, and facilities of such carriers; and
(2) the construction, acqulSltlon, operation,
abandonment, or discontinuance of spur, industrial,
team, s\vitching, or side tracks, or facilities, even if
the tracks are located, or intended to be located,
entirely in one State, .-
is exclusive. Except as othef\vise provided in this part, the
remedies provided under this part with respect to regulation of rail
transportation are exclusive and preempt the remedies provided
under Federal or State law.
11
As will be shown below, Section 10501(b) expressly preempts the City's
authority to regulate train speed. In addition, because the federal government occupies the field
with respect to transportation by rail carriers, the ICCT A also preempts state and/or municipal
attempts to regulate train speed pursuant to the doctrine of field preemption. Finally, because
Congress' intent in enacting ICCT A was to free railroads from state regulation, attempts by a
state and/or municipality to regulate train speed are in conflict with Congressional intent, and are
thus preempted pursuant to the doctrine of conflict preemption.
49 D.S.C. 9 10501(b) expressly preempts state and municipal attempts to regulate
train speed. Where, as here, Congress has enacted an express preemption provision, the scope of
matters intended to be preempted by that -provision is determined by looking primarily at the
language of the preemption provision and the statutory framework surrounding it. Medtronic.
Inc. v. Lohr, 518 U.S. 470, 116 S. Ct. 2240, 2250-51 (1996). When these factors are examined
with respect to the ICCT A, it is clear that Section 1050 1 (b) preempts state and local attempts to
regulate train speed.
Turning first to the language of Section 10501(b), Congress clearly stated that it
intended to preempt state "regulation of rail transportation." This language is extremely broad.
Indeed, as one court has stated, "It is difficult to imagine a broader statement of Congress' intent
to preempt state regulatory authority over railroad operations." CSX Transp.. Inc., 944 F. Supp.
at 1581. See also Burlington Northern Santa Fe Corp. v. Anderson, 959 F. Supp. 1288, 1295 (D.
Mont. 1997) (The language of "[t]he Act reserves no area of regulation for the individual
states"); Georgia Public Servo Comm. v. CSX Transp.. Inc., 484 S.E.2d 799, 801 (Ga. App.
1997) ("This express delineation of the breadth of the law's preemptive reach is 'clear and
manifest. ''').
12
The promulgation and approval of a train speed ordinance is "regulation of rail
transportation" and is thus expressly preempted. While the ICCT A does not define "regulation,"
it is certainly a commonly used term. To "regulate" means "to fix, establish or control" or "to
direct by rule or restriction. ,,3 Establishing a speed limit is regulation. This conclusion is
buttressed by looking at the statutory framework of the ICCT A. In enacting the ICCT A with its
broad preemption provision, Congress granted to the STB exclusive jurisdiction over
"transportation by rail carriers." 49 V.S.C. 9 10501(b)(1). Congress broadly defined
"transportation" to include a "locomotive, car, vehicle. . . or equipment of arty kind related to the
movement of passengers or property, or both, by rail. . . and services related to that movement."
49 U.S.C. 9 10102(9). As a consequence, the -STB has exclusive jurisdiction over the movement
by rail of locomotives, cars, vehicles or equipment. That exclusive jurisdiction precludes a state
agency or a local government from attempting to assert jurisdiction over such movements. Also,
in the ICCTA Congress provided that the remedies available under the ICCTA with respect to,
inter alia, the "transportation by rail carriers" were to be exclusive. 49 U.S.C. 9 10501(b). In
other words, the only remedies available with respect to rail transportation, including train speed,
are those available under the ICCT A. The STB' s jurisdiction over transportation by rail carriers
is exclusive. Congress has expressed its intent that all regulation of rail carriers should be done
by the federal agency uniquely qualified to address these matters, the STB, not individual states
or municipalities.
In addition to expressly preempting state and local attempts to regulate train
speed, ICCT A also preempts such attempts via the doctrine of field preemption. Field
preemption occurs where Congress' regulation of a field is so pervasive that an intent to occupy
34
Black's Law Dictionary (5th Ed.)
13
Marshfield at 12. If states and municipalities have the ability to regulate the speed of trains, then
railroads are potentially subject to regulation by all municipalities in which their tracks or
property are located, thereby frustrating Congress' purpose to deregulate the railroad industry.
Thus, local attempts to regulate train speed are preempted by ICCT A pursuant to the doctrine of
conflict preemption.
While IMRL is unaware of any court which has directly addressed the issue of
whether ICCT A preempts state and municipal attempts to regulate railroad speed via a speed
ordinance, the court's reasoning in CSX Transp'. Inc. v. Plymouth, _ F. Supp.2d _, 2000 WL
520672 (E.D. Mich. 2000), which held that a state statute limiting the amount of time a train can
block a crossing was preempted by ICCT A,. is also applicable to state and municipal attempts to
regulate train speed via a: speed ordinance. In holding that ICCT A preempts the state statute, the
court in Plymouth reasoned that the state statute results in economic regulation of the railroad
because compliance with the statute would cause the railroad to incur significant expenses. Id. at
* 15-17. The Court concluded that state economic regulation was preempted. Id. Similarly,
llvfRL would incur significant expenses if it had to comply with local ordinances such as City
Ordinance 39-1, and thus, speed ordinances are preempted. Slower trains result in longer travel
times; which in turn results in higher labor costs. Additionally, reducing speed causes additional
wear and tear on the track and equipment and results in higher fuel consumption, which creates
serious economic issues in these times of ever-increasing fuel prices. Woodward Aff at ~ 14.
Compliance with local ordinances also puts at risk ThfRL's ability to furnish rail services to
customers in a timely manner as well as threatens its obligations to connect with other carriers.
Id.. In addition, IMRL has incurred substantial expenses in upgrading and maintaining its track
so that it can operate at higher speeds. For example, ThfRL has spent almost two million dollars
just in Dubuque upgrading its track from Class I to Class III. If local regulation of train speed is
allowed, these capital improvements would have been wasted. Woodward Aff at ~ 15. As
15
eXplained in Plymouth, requiring a railroad to undergo substantial expenditures or depriving a
railroad of the benefit of its capital improvements is the sort of economic regulation that ICCT A
has preempted. Id. at * 16-17. Accordingly, the Department should not approve City Ordinance
No. 39-1.
B. City Ordinance 39-1 Violates the
Commerce Clause of the United States Constitution
City Ordinance 39-1 should not be approved because it violates the Commerce
Clause of the United States Constitution. Section 8) Article 1 of the United States Constitution
provides) in pertinent part) that Congress shall have the power "[t]o regulate commerce with
foreign Nations) and among the several States) and with the Indian tribes.>> While state and local
governments may regulate matters of local' concern that incidentally affect interstate commerce
without running afoul of the commerce clause) state and local governments are prohibited from
passing laws which substantially affect the free flow of interstate commerce. Southern Pac.
Transp. v. St. Charles Parrish Police Jury) 569 F. Supp. 1174) 1l79,(E.D. La. 1983).
In Pike v. Bruce Church. Inc.) 397 U.S. 137 (1970)) the Supreme Court set forth
the test to determine the validity of a state regulation affecting interstate commerce:
Where the statute regulates even-handedly to effectuate a
legitimate local public interest) and its affects on interstate
commerce are only incidental) it will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the
putative local benefits. . . If a legitimate purpose is found) then the
question becomes one of degree and the extent of the burden that
will be tolerated will of course depend on the nature of the local
interest involved, and whether it could be promoted as well with
lesser impact on interstate commerce.
Id. at 142.
As previously explained) local regulation of train speed places a burden on
interstate commerce in that it increases the cost of interstate commerce) it interferes with the
carriers' obligation to furnish rail services to customers, it puts at risk schedules and obligations
16
to connect with other carriers, and it causes higher fuel, labor, and maintenance costs. Southern
Pac. Transp. Co. v. S1. Charles Parish Policy Jury, 569 F. Supp. 1174, 1177 (E.D. La. 1984);
Woodward Aff. at ~ 14. In contrast, in most cases, and here, there is little, if any, local interest
that is promoted by municipal regulation of train speed. As previously explained, and as other
cases make clear, local regulation of train speed increases the risks of derailments and grade
crossings accidents, thereby actually increasing the risks to the public. Because local regulation
of train speed substantially interferes with interstate commerce, and provides little if any local
benefit, the burden local speed ordinances place on interstate commerce is unconstitutional. See.
Southern Pac. Transp. v. St. Charles Parish Police Jury. 569 F. Supp. 1174 (E.D. La. 1983); Ohio
v. Schwartz, 435 N.E.2d 689 (Ohio Ct. App.. 1980).
C. The factors Set forth in Iowa Administrative
Code 761-800.15(4) Favor Disapproval of City Ordinance 39-1.
1. Traffic density and speed
Given the traffic density and speed in the area in which IMRL operates in-
Dubuque, City Ordinance 39-1 is not justified. IMRL operates six trains daily through Dubuque.
Woodward Aff. at ~ 3. IMRL operates through an industrial area along the Mississippi River
with a relatively low level of motor vehicle traffic in the area. W~odward Aff. at ~ 4.
Throughout most of Dubuque, IMRL already operates at a maximum speed of25 m.p.h. Id. at
,
~~ 5-7. There are only two crossings in Dubuque at which IMRL operates up to a maximum
speed of 40 m.p.h. Id. at ~ 7. IMRL's transportation officers use radar to check compliance with
its timetable speed and the speed limits set forth in the federal regulations. Id. at ~ 12. Given
that INIRL is already operating at 25 m.p.h. through most of Dubuque and that there is minimal
traffic density throughout the area in which IMRL operates in excess of 25 m.p.h., City
Ordinance 39-1 is unnecessary regulation.
17
2. Accident Frequency
IMRL has had no grade crossing accidents along its main line route in Dubuque,
and thus the accident history along IMRL's route does not support approval of City Ordinance
39-1. Woodward Aff at ~ 8.
3. Causes of Accidents
The only crossing accident that Th1RL has had in Dubuque involved a train
traveling a mere 5 m.p.h. on an industrial lead track. Woodward Aff at ~ 8. A municipal speed
limit of25 m.p.h. would not liave prevented that accident.
4. Obstructions to Visibility
There are no unusual visibility probl.ems at any of the crossings over which IMRL
operates in Dubuque. Woodward A.ff at ~ 8. Rather, the crossings in Dubuque, are typical of
grade crossings throughout the state, over many of which IMRL operates at higher speeds. Id..
Thus, there is nothing unique about the crossings in Dubuque which would warrant a local speed
restriction.
5. Traffic Controls at Crossin~s
The traffic controls at the crossings in Dubuque are adequate warning devices.
The warning devices at the crossings on Th1RL's main line are set forth in the following chart:
Street Protection
Seventh Street Gates and Flashers
Ninth Street Gates and Flashers
Eleventh Street Gates and Flashers
Twelfth Street Flashers
Fourteenth Street Flashers
Fifteenth Street Flashers
Sixteenth Street Flashers
18
Hawthorne Street
Lincoln Avenue
Flashers
Crossbucks
Woodward AfI at ~~ 6-7. The warning devices at the crossing on CC&P's track
on which IMRL operates are flashers and gates. Id. at ~ 5. The adequacy of these warning
devices is further supported by the fact that IMRL has had no grade crossing accidents on its
main route in Dubuque.
6. Population Density
The population density in the area over which IMRL operates does not support a
local speed ordinance. As previously explained, IMRL operates through an industrial area along
the Mississippi River on the west side of Dubuque. Woodward Aff. at ~ 4. IMRL does not
operate through any residential or highly populated areas. Id. Thus, the population density does
not support Dubuque's attempted regulation ofIMRL's train speed.
7. Resultin~ Burden on the Rail Transportation System
As previously explained in this position paper, local train ordinances have several
adverse effects on railroad operations. For instance, slowing a train for local restrictions causes
additional wear and tear on the track and rail equipment. This results in higher maintenance and
repair costs. Additionally, slowing the train before entering an area restricted by a speed
ordinance and accelerating upon leaving the area results in higher fuel costs. Local speed
restrictions also cause longer travel times, which in turn increase labor costs, and put at risk the
ability to connect with other carriers and to serve customers. Finally, local speed restrictions
deprive a railroad from the benefit of its capital improvements. Woodward Aff. at ~~ 13-15.
While the City may argue that the effect of its ordinance on IMRL is minimal,
particularly in the light of the fact that IMRL already operates at 25 m.p.h. through most of
Dubuque, this misses the point. Allowing Dubuque to regulate train speed in an area with no
19
main line grade crossing accident history, no unusual obstructions to visibility, low population
density, low traffic levels, and adequate warning devices not only opens the door for other
municipalities to attempt to regulate train speed, but almost encourages them to do so. Such
patchwork regulation would have a devastating effect on Th1RL's operation and interstate
commerce.
8. Resultin2: Benefit to Residents of the Political Subdivision
Because Th1RL already operates at a maximum speed of 25 m.p.h. through most
of Dubuque, there is little, if any, benefit to approving City Ordinance 39-1. With respect to the
two crossings over which Th1RL operates at a maximum speed of 40 m.p.h., approving the
Ordinance would actually harm the commu.nity in that it would result in crossings being blocked
for longer periods oftime with no corresponding increase in safety.
IV. Conclusion
Dubuque City Ordinance 39-1 and the statutory approval process are preempted
by the Federal Railway Safety Act and the Interstate Commerce Commission Termination Act.
Moreover, the ordinance, if approved would place an excessive burden on interstate conunerce in
violation of the Commerce Clause of the United States Constitution. Because of these conflicts
with federal law, the Department of Transportation should not approve City Ordinance 39-1.
Even if the Department decides this matter on the merits, the factors set forth in Iowa
Administrative Code 761-806.15(4) clearly favor disapproval of the ordinance. Accordingly, the
Department of Transportation should not approve Dubuque City Ordinance 39-1.
Dated: May 17, 2000.
James D. Helenhouse
Fletcher & Sippel LLC
Two Prudential Plaza, Suite 3125
180 N~ Stetson Avenue
Chicago, II... 60601-6721
Telephone: 312-540-9450
Walter Orze, Esq.
I & M Rail Link, LLC
P.O. Box 8182
Missoula, MT 59807 .
Telephone: 406-523-13 56
20
CERTIFICA TE OF SERVICE
The undersigned attorney states that he caused a copy of I & 1\t1 Rail Link,
LLC's Position Paper in Opposition To Dubuque City Ordinance No. 39-1 and Affidavit of
Scott F. Woodard to be served upon:
Modal Transportation Division
Office of Rail Transportation
Iowa Department of Transportation
800 Lincoln Way
Ames, IA 60010
and
James L. Gibson, Esq.
Iowa Department of Transportation
800 Lincoln Way
Ames, IA 60010
by depositing copies of the same in the United States First Class Mail, postage prepaid, located at
180 North Stetson Avenue, Chicago, IL 60601 before the hour of5:00 p.m., this 17th day of May,
2000.
James D. Helenhouse
~.. 8t?rYYc~n R~E,~:r!E1]o~!;lt of Transpo'hf2!I9sQ
",*"'J Fax: 515-239-1975
May 12, 2000
Chicago., Central and Pacific Railread Cempany
c/o. C T Cerporatien System
2222 Grand Avenue
Des Meines, Iewa 50312
Burlingten Nerthern Santa Fe Railread Cempany
c/o. C T Cerperatien System
2222 Grand Avenue
Des Meines, Iewa 50312
Dear C T Cerporatien:
RE: Decket No.. RR-RO-00-1, Request fer Appreval ef Train Speed Ordinance, City ef
Dubuque, Iewa.
On March 17,2000, the City efDubuque, Iewa, pursuant to. Iowa Code Section 327F.31
submitted a request fer Iowa Department efTransportation approval ef City Ordinance No. 39-1
(cepy attached) regulating the speed of trains passing through the city of Dubuque, Iowa.
In the precess ef reaching a decision on this matter the Department is required to. notify the
affected railroad(s).
In accerdance with Iowa Administrative Code 761-800.15(3) the City of Dubuque and the
affected railreads shall have thirty (30) days in which to. submit position papers to the
Department.
Please be advised that pesition papers, if any, sheuld be filed with the Rail Transpertation Office,
Iewa Department ofTranspertation, on or before thirty (30) days after your receipt of this letter.
This letter will serve as official notice in this matter.
PLEASE TAKE NOTICE TO THE ABOVE AND GOVER.J.'l YOURSELF
ACCORDINGL Y.
",
Sincerely,
iA".uU ! Ji~
James L. Gibson
Rail Regulation and Operations
Office of Rail Transportation
cc: Michael C. Van Milligan, City Manager
Tom Jackson, Iowa Department of Transportation
Charles W. Webster
General Counsel . US
'CJ\J
Canadian National/Illinois Central
455 North Cityfront Plaza Drive
Chicago. Illinois 60611.5504
Telephone: (312) 755-7663
Fax: (312) 755-7669
Internet: charles.webster@cn.ca
VIA FAX AND FIRST CLASS MAIL
June 9, 2000
RECEIVED
JUN 1 5 2000
RAIL TRANSPORTATION
Mr. James 1. Gibson
Rail Regulation & Operations
Office of Rail Transportation
Iowa Department of Transportation
800 Lincoln Way
. Ames, Iowa 50010.
Re: Docket No. RR-RO-OO-l,City of Dubuque's Request for Approval of its Train
Speed Ordinance
Dear Mr. Gibson:
Enclosed please find the position paper of the Chicago, Central & Pacific Railroad d/b/a
Canadian NationallIllinois Central Railroad.
If you have any questions or remarks, please give me a call.
Very truly yours,
~J!v tdJ~.
CharlesW. Webster IJ
IN THE MATTER OF REQUEST FOR
AFPROV AL OF TRAIN SPEED
ORDINAL"\J"CE, CITY OF DUBUQUE,
IOWA
RE: DOCKET NO. RR-RO-OO-l
POSITION PAPER OF CHICAGO. CENTRAL & PACIFIC RAILROAD
In this proceeding the City of Dubuque, Iowa has requested that the Iowa Department of
Transportation (IDOT) grant carte blanche "approval" of a 1976 city train speed ordinance which
purports to limit train speed for passenger trains and freight trains to 30 mph and 25 mph over e\'ery
railroad grade crossing throughout the city. The request should be denied.
FACTUAL BACKGROUND
Within the city limits of Dubuque, the Chicago, Central & Pacific Railroad (CCP) has 8
miles of track with 22 public and 1 private crossing. Of the public crossings, 7 have active warning
devices and 15 have crossbucks. No two crossings are identical but each crossing has essentially
the same characteristics as crossings in urban areas throughout the state. Pursuant to Federal
Railroad Administration (FRA) regulations, 49 C.F.R. 9213.9, CCP trackage throughout the City
of Dubuque is now designated as Class 2 trackage although it may be upgraded. CCP currently
operates throughout the City of Dubuque at no greater than 25 mph pursuant to the FRA regulations
and CCP's timetable. .
THE FEDERAL RAILROAD SAFETY ACT OF 1970
First enacted in 1970, the Federal Railroad Safety Act of 1970 (FRS A) was designed "to
promote safety in every area of railroad operations and reduce railroad-related accidents and
incidents," 49 U.S.C. 9 20101. In order to ensure nationally uniform rail safety laws, FRSA
contains an express provision preempting state laws once the Secretary of Transportation, through
the FRA, has issued a regulation "covering the subject matter ofthe state regulation." 49 U.S.c. 9
20106. (Exhibit A.) This preemption provision has repeatedly been held to preempt local train
speed ordinances such as the 1976 Dubuque ordinance. Chesaoeake & Ohio Rv. Co. v. Citv of
Bridgman, 669 F.Supp. 823 (W.D. Mich. 1987); CSX Transp. Inc. v. City ofTullahoma. Tenn., 705
F.Supp. 385 (E.D. Tenn 1988); City of Covington. KY v. Chesaoeake & Ohio Ry., 708 F.Supp. 806
(E.D. KY 1989); and Wright bv and through Wright v. Illinois Central R. Co., 868 F.Supp. 183 (S.D.
Miss. 1994).
As noted in Consolidated Rail Corp. v. Smith, 664 F.Supp. 1228, 1238 (N.D. Ind. 1987),
municipal regulation of speed is so greatly at odds with the congressional purpose of uniformity as
to need no further argument.
As a result of FRS A, Dubuque's ordinance has been invalid since it was enacted and the
city's request that IDOT now "approve" the ordinance will not resurrect the ordinance from the grave
nor does IDOT have any authority to breathe life into the invalid ordinance.
FRSA COVERS THE SUBJECT MATTER OF TRAIN SPEED OVER GR<\DE
CROSSINGS IN DUBUOUE. IO\V A
There is no doubt that 49 C.F.R. S 213.9 (Exhibit B) covers the subject matter of train speed
throughout the state ofIowa, including the City of Dubuque, and Dubuque's ordinance is therefore
preempted unless the narrow exception set forth in 49 C.F.R. S 20106 is met. That exception permits
a state to adopt a more stringent law or regulation only upon a showing that each of the following
requirements are met:
1. The law or regulation is necessary to eliminate an essentially local safety hazard;
2. The law or regulation is not incompatible with a law, regulation, or order of the
United States Government; and
3. The law or regulation does not unreasonably burden interstate commerce.
However, as a threshold matter, Dubuque's city ordinance fails to even qualify for
consideration under the exception set forth above as it is not a proposed state law or regulation, but
instead is merely a city ordinance which IDOT is without authority to approve under FRSA.
Donelon v. New Orleans Terminal Com?anv, 474F.2d 1108 (5th Cir. 1973) cert denied 414 U.S. 855
(1973); CSX Transp., Inc. v. City ofPlvrnouth, Michigan, 86 F.3d 626 6th Cir. 1996). Additionally,
Dubuque has not even set forth a prima facie case to bring itself within FRSA's narrow exception,
and cannot do so, mandating that its request be denied,
DUBUOUE CANNOT MEET FRSA'S NARROW EXCEPTION TO
FEDERAL PREEMPTION
The first of the three prongs of FRSA's narrow exception which must be overcome
(assuming that the Dubuque ordinance is not barred on.its face because it is not a state law) is the
requirement that the city demonstrate that the state law is necessary to eliminate or reduce an
essentially local safety hazard.
Neither Dubuque's ordinance, nor its request, indicates the 1976 ordinance is necessary to
eliminate or reduce an essentially local safety hazard. In fact, the ordinance addresses all grade
crossings en masse without distinguishing between crossings, nor identifying any peculiar hazards
at each crossing that are not normally encountered at urban crossings throughout the state. (The
ordinance also does not distinguish between public and private crossings over which neither the dty
nor the state has no power to regulate train speed.)
Case law interpreting the first prong of 49 U.S. C. S 20 I 06 has made clear that general safety
concerns such as apparently contemplated by Dubuque's citywide ordinance are not sufficient to
meet this requirement. In rejecting Plaintiffs local hazard exception argument in CSX
Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993), the U.S. Supreme Court made clear that
2
general state law requirements such as the duty not to operate a train at excessive speeds does not
fall within the "local safety hazard" prong of 49 U.S.c. S 20106. Specifically, the Court noted that
the federal speed requirements "should be understood as covering the subject matter of train speed
with respect to conditions, including the conditions posed by grade crossings." rd. at 675.
Following Easterwood, numerous courts have likewise concluded that state law claims which
attempt to impose additional regulations on train speed (i.e., that the train should have operated at
a slower speed given the conditions at a grade crossing) are preempted.
As noted in a recent Iowa case, Steva v. Soo Line Railroad Co., 117 F.3d 1423 (8th Cir. 1997)
(unpublished - Exhibit C), conditions such as traffic volume, the lack of an active warning device,
the grade and angle of the crossing and surrounding vegetation do not constitute local safety hazards
as:
These conditions can commonly be found at other crossings, however, and can
adequately be addressed within uniform, national standards.
See also, Armstrongv. Atchison, Topeka & SantaFeRy. Co., 844F.Supp. 1152 (W.D. Tex.
1994). Additionally, buildings and factories near the crossing do not constitute a local safety hazard,
Bowman v. Norfolk & Southern Rv. Co., 832 F.Supp. 1014 D.S.C. 1993) affd 66 F.3d 315 (4th Cir.
1995).
In fact, a local safety hazard must be a specific aberrational factor that is not continually
present and is not capable of being addressed by uniform standards. O'Bannon v. Union Pacific
R.R. Co., 960 F.Supp. 1411 (W.D. Mo. 1997) affd 169 F.3d 1088 (8th Cir. 1999); Herriman \'.
ConraiL.lnc., 883 F.Supp. 303 (N.D. Ind. 1995).
Dubuque's request for en masse approval of its citywide ordinance does not and cannot meet
the requirements of the local safety hazard prong of 49 U.S.c. S 20106.
DUBUQUE'S CITY QRDINA1~CE IS INCOMPATIBLE \VITH 49 C.F.R. ~ 213.9
The second prong of the three part test for permitting state regulation of train speed is that
the state law requirement not be incompatible with federal.law. Ho\vever, 23 C.F.R. S 213.9
regulates train speed throughout the state of Iowa, including towns and municipalities and
Dubuque's city ordinance is incompatible and in conflict with federal law and cannot stand. Citv
of Covington, KY v. Chesapeake & Ohio Ry., 708 F.Supp. 806 (E.D. KY 1989).
DUBUQUE'S CITY ORDINANCE WOULD UNDULY BURDEN
INTERSTATE COMMERCE
Dubuque's citywide ordinance would unduly burden interstate commerce. A permanent en
masse speed restriction throughout the City of Dubuque unduly restricts the movement ofCCP's
interstate train movements not only in Dubuque but throughout the entire CCP system as CCP's train
3
movements are time sensitive depending on prompt connections at interchange and connection
points throughout its system. If the City of Dubuque can resurrect invalid train speed ordinances
merely by seeking en masse approval of old city ordinances, every town or municipality throughout
the United States could similarly impose such speed restrictions thereby completely negating the
"national uniformity required by FRSA." As noted in Herriman v. Conrail. Inc., 883 F.Supp. 303
(N.D. Ind. 1995), such requirements constitute a "hodgepodge of safety regulations" that Congress
sought to avoid when it enacted FRSA which would create an "undue burden on interstate
commerce. "
IDOT IS \VITHOUT AUTHORITY TO APPROVE THE CITY'S REOUEST
Section 761-800.15 of the Iowa Administrative Code has been redered invalid by virtue of
the enactment of FRSA. Under FRS A, laws regulating railroad train speed shall be "nationally
uniform." Section 761 - 800.15 of the Iowa Administrative Code was obviously promulgated
without consideration of the requirements of FRS A. Following the enactment of FRS A, only states,
not political subdivisions, can regulate train speed through FRSA's narrow three prong exception.
Donolon, Id. Additionally, in determining whether a local safety hazard exists, the only relevant
considerations are aberrational factors that ar:e-not continually present at the crossing which are not
capable of being addressed by nationally uniform standards. Steva, Id.; O'Bannon, Id. However,
the decisional factors set forth in Section 800.15 set forth considerations which are clearly not factors
which are unique to Dubuque or which are not present at urban areas throughout the country.
Armstrong, Id. Thus, Section 761 - 800.15 of the Iowa Administrative Code is invalid and IDOT
is without authority to "approve" Dubuque's train speed ordinance.
4
CONCLUSION
The City of Dubuque's request for mOT "approval" of its 1976 train speed ordinance must
be denied and mOT is without authority under FRSA to approve the city's request.
5
EXHIBIT A
49 U.S.c. & 20106 - National Uniformity of Regulation
Laws, regulations, and orders related to railroad safety shall be nationally
uniform to the extent practicable. A State may adopt or continue in force a law,
regulation, or order related to railroad safety until the Secretary of Transportation
prescribes a regulation or issues an order covering the subject matter of the State
requirement. A State may adopt or continue in force an additional or more stringent
law, regulation, or order related to railroad safety when the law, regulation, or order
1. is necessary to eliminate or reduce an essentially. local safety hazard;
2. is not compatible with a law, regulation, or order of the United States
Government; and
3. does not unreasonably burden interstate commerce.
6
EXHIBIT B
49 F.R.A. 9 213.9 - Classes of track: operating speed limits.
(a) Except as provided in paragraphs (b) and (c) of this section and SS
213.57(b),213.59(a), 213.11(1), and 213. 137(b) and (c), the following maximum
allowable operating speeds apply:
Over track that meets all of the
requirements prescribed in this
part for ---
Class 1 track .....................................
Class 2 track .....................................
Class 3 ,track .....................................
Class 4 track .....................................
Class 5 track .....................................
Class 6 track .....................................
[in miles per hour]
The maximum
allowable
operating speed
for freight trains
IS ---
10
25
40
60
80
110
15
.30
60
80
90
110
7
The maximum
allowable
operating speed
for passenger
trains is ---
L.R. VOIGTS
JAMES B. WEST
EDGAR F. HANSELL
W. DON BRIlTIN, JR.
R. CRAlG SHIVES
DON MUYSKENS
ROGER L. FERRIS
LA IVRENCE E. MYERS
KEmi E. LUOfTEL
GERALDJ.NEWBROUGH
ROBERT A. VANORSDEL
RICHARD J. SAPP
G.R. NEUMANN
RUSSELL E. SOiRAGE
CARLTON T. KING
GREGORY P. PAGE
RANDALLG.HO~NN
JAY EATON
BUR..\;S MOSSMAN
June 14,2000
NYEMASTER, GOODE, VOIGTS, WEST,
HANSELL & O'BRIEN
A PROFESSIONAL CORPORATION
ATIORNEYS AND COUNSELORS AT LAW
PHYLLIS E. PEARSON
BRADFORD L AUSTIN
SARA J. SERSlAND
HAYWARD L. DRAPER
JAMES E. GRITZNER
MICHAEL W. TIiRALL
MARK C. DICKINSON
GREGORY B. WILCOX
JOHN F. LORENTZEN
ROD KUBAT
STEVENJ.ROY
FRANK B. MARlY
JAMES C. WINE
BRUCE W. BAKER
THOMAS W. FOLEY
STEVEN H. LYTLE
TERRY C. HANCOCK
ANTIiONY A. LONGNECKER
JOSEPH A. QUINN
WADE H. SCHUT
MARK D. AL)ETS
G. THOMAS SULUV AN
lOAN FLETCHER
THOMAS H. WALTON
WILLARD L BOYD m
JEFFREY W. COURTER
HALUE E. 5TILL-<:ARIS
DAVID W. BENSON
BRIAN J. HUMKE
DEBORAH S. KRAUTH
PAULAS.D~D
COREEN K. BEZDICEK
JOHN B. 11JFFNELL
)ILL M. STEVENSON
ANGEL A. WEST
KATHRYN A. OVERBERG
ANGELA L. WATSON
IENNIFER L. VERGIUI
Via Facsimile and U.S. Mail
Mr. James L. Gibson
Rail Regulation and Operations
Office of Rail Transportation
Iowa pepartment of Transportation
800 Lincoln Way
Ames, IA 50010
KERI K. FARRELL-KOLB
DEBRA L. DALTON
JOHN T. a.E1'<'OENIN
A."IY L. VANDUYN
NEAL K. WESTIN
STEPHA.'IIE L. MARETT
700 WAlNUT, SuTTE 1600
DES MOINES, low A 50309-3899
(515) 283-3100
1416 BUCKEYE A VENUE, SUITE 200
AMES, IOWA 50010-8070
(515) 233-3000
FACSIMILE
(515) 283-8045
OF COUNSEL
SAMUEL G. o'BRIEN
JOHN J. MCLAUGHLIN
DREW R. mLOTSON
FRANK B. COMFORT
LUTHER L. HILL, JR.
BARRY J. NADLER
L.W. "BILL" ROSEBRDOK
WRITER'S DIRECT DIAL NUMBER
(515)283-3189
MWT@NYEMASTER.COM
RAY NYEMASTER
(1914-1995)
REPL y To: DES MOINES
Re: Docket No. RR-RO-OO-l, Request for Approval of Train Speed
Ordinance, City of Dubuque, Iowa
Dear Mr. Gibson:
I have enclosed the Position Paper of the Burlington Northern and Santa Fe Railway
COP.1pany with regard to the above referenced matter. Please do not hesitate to. contact me if you
have any questions.
MWT /jn
Ene.
Very truly YOl}{s, /) .')
fN;;&~
/ MichaeJ'W Th:a;,' / .
IOWADEPART.MENT OF TRANSPORTATION
In the Matter of Request for Approval
of Train Speed Ordinance,
City of Dubuque, Iowa
) Docket No. RR-RO-OO-l
)
) POSITION PAPER OF THE
) BURLINGTON NORTHERN AND
) SANTA FE RAILWAY COMPANY
The Burlington Northern and Santa Fe Railway Company ("BNSF") submits the following
position paper on the request of the City of Dubuque for approval of Dubuque City Ordinance
No. 39-1 pursuant to Iowa Administrative Code 761-800.15(3) .
INTRODUCTION
The Federal Railway Safety Act, 49 ~.S.c. S 20101, et seq. ("FRSA"), was enacted by
Congress in 1970 lito promote safety in every area of railway operations and reduce railroad-
related accidents and incidents. II 49 U. S. C. S 20101. Congress intended "laws, regulations, and
orders related to railroad safety. . . be nationally uniform to the extent practicable, II 49 U.S. C.
S 20106. Pursuant to this authority, the Federal Railroad Administration ("FRA") has adopted
regulations governing the speed of trains. 49 C.F.R. S 21'3.9. The federal speed limits apply to
and govern the speed of trains within the Dubuque city limits.
In 1976, the City of Dubuque adopted its own ordinance purporting t.o restrict the speed
of passenger and freight trains within the city limits. City Ordinance 39-1 provides:
No passenger train shall be operated over and upon the grade crossings in
the city at a speed of greater than thirty (30) miles per hour, nor any freight train at
a speed greater than twenty-five (25) miles per hour.
Twenty-four years after it was enacted, the City seeks approval of this 1976 city ordinance.
The Iowa Department of Transportation ("IDOT") is without authority to approve the
City's request. The Dubuque city ordinance, as well as the procedures for approval of the
ordinance of Iowa Code S 327Fo31 (1999), are preempted by federal law. The City has failed to
establish that it faIls within the narrow exception to preemption set forth in the FRSA. The City's
ordinance places an undue burden on interstate commerce in violation of the Commerce Clause of
the United States Constitution. Even were the procedures and ordinance not preempted by
federal law, the C;ity has failed to establish that the factors set forth in Iowa Code 761-800015(4)
necessitate approval of the ordinance.
FACTS
BNSF is an interstate rail carrier. BNSF does not own any track within the city limits of
Dubuque. BNSF may from time to time op'erate trains on track of other railroads within the city
limits of Dubuque.
ARGUMENT
BNSF adopts the arguments of I&M Rail Link, LLC and the Chicago, Central & Pacific
Railroad in the position papers those railroads have submitted in this matter.
CONCLUSION
The Burlington Northern and Santa Fe Railway Company respectfully requests that the
City of Dubuque's request for approval of City Ordinance 39-1 be denied.
Dated: ...}U.Nf.. tl{ ],000
.
Michael W. rail
NYEMASTER, GOODE, VO TS,
WEST, HANSELL & O'BRIEN, PoCo
700 Walnut Street, Suite 1600
Des Moines, IA 50309-3899
Telephone: (515) 283-3189
Fax: (515) 283-8045
A TTORNEYS FOR THE BURLINGTON
NORTHERN AND SANTA FE RAILWAY
COMP ANY
2
t:rrtt. 81~~~n ~e~~w'no~pt of Transpo'hf2t!9sQ
~~ Fax: 515-239-1975
May 12, 2000
Chicago, Central and Pacific Railroad Company
c/o C T Corporation System
2222 Grand Avenue
Des Moines, Iowa 50312
Burlington Northern Santa Fe Railroad Company
c/o C T Corporation System
2222 Grand Avenue
Des Moines, Iowa 50312
Dear C T Corporation:
RE: Docket No. RR-RO-00-1, Request for Approval of Train Speed Ordinance, City of
Dubuque, Iowa.
On March 17,2000, the City of Dubuque, Iowa, pursuant to Iowa Code Section 327F.31
submitted a request for Iowa Department of Transportation approval of City Ordinance No. 39-1
(copy attached) regulating the speed of trains passing through the city of Dubuque, Iowa.
In the process of reaching a decision on this matter the Department is required to notify the
affected railroad(s).
In accordance with Iowa Administrative Code 761-800.15(3) the City of Dubuque and the
affected railroads shall have thirty (30) days in which to submit position papers to the
Department.
Please be advised that position papers, if any, should be filed with the Rail Transportation Office,
Iowa Department of Transportation, on or before thirty (30) days after your receipt of this letter.
This letter will serve as official notice in this matter.
PLEASE TAKE NOTICE TO THE ABOVE AND GOVER1~ YOURSELF
ACCORDINGLY.
Sincerely,
t::b~~~
Rail Regulation and Operations
Office of Rail Transportation
cc: Michael C. Van Milligan, City Manager
Tom Jackson, Iowa Department of Transportation
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Sec. 39-1. Speed restrictions.
No passenger train shall be operated over and
Upon the grade crossings in the city at a speed of
greater than thirty (30) miles per hour, nor any
freight train at a speed greater than twenty-five
(25) miles per hour.
(Code 1976, ~ 32-2)
Sec. 39-2. Unlawful deposits.
No debris or substances of any kind shall be
deposited or permitted to be deposited Upon any
street where railroad tracks are located and where
cars are placed Ul be loaded or unloaded either by
abutting owners or occupants of property or other
persons.
(Code 1976, ~ 32-3)
Sec. 39-3. Maintenance of crossings, rights-
Of-way.
(a) Notice to repair. Whenever the council or
manager shall consider repairs necessary Upon
street, avenue or alley crossings or rights-of-way
occupied by the railroad company operating within
the city, the council or manager shall notify such
company to make the required repairs, which no-
tice may be served upon or mailed to any officer of
the company and shall state the time and place
when and where such repairs shall be made and
prescribe the materials with which such repairs
shall be constructed.
(b) Performance of work by city upon company's
failure to make repairs after notice. All repairs to
railroad crossings or rights-of-way ordered made
by the council or manager shall be fully performed
without delay at the expense of the company so
notified. However, should repairs be ordered and
not made by any company the councilor manager
shall proceed to have such repairs made.
(c) Collection of costs of repairs made by city.
The expense of repairs made by the city pursuant
to paragraph (b) of this section shall be charged to
the company and collected, if necessary, by suit of
any court of competent jurisdiction.
(d) lrf anner of repairs; materials; supervision.
The manner in which the repairs provided for in
paragraph (a) of this section shall be made and
2477
C [1'( CFD fN.:.lACE
RA1I.ROADS
t 39-1
the materials to be used shall be designated by
the manager and the work shall be performed
under the supervision of the manager and the en-
gJ.neer.
(e) Proration of expenses between railroads.
Whenever repairs are ordered Ul be made, pur-
suant to this section, at any crossing which is USed
by more than one railroad, each railroad sha1l
bear such proportion of the expense thereof as the
amount of space occupied by such railroad bears
to the whole amount of repairs ordered. The man-
ager shall determine the amount of repairs which
each road shall make and the manager's decision
shall be fInal.
(f) Effect of section as to previous grants. Wher-
ever grants to railroad companies, made previous
to August 2, 1920, prescribing the manner in
which repairs at railroad crossings shall be made
are in conflict with this section, the same are
hereby repealed and the provisions of this section
are intended to SUpersede the same.
(Code 1976, ~ 324)
Sec. 39-4. Use of certain track as team track
restricted.
'hack No.3 located upon Jackson Street in the
city a.."1d extending from Sixth Street to Eleventh
Street and owned and constrUcted by the TIlinois
Central Railroad Company shall not be wed as a
"team track" for the loading or unloading of rail-
road cars thereon; provided, however, that should
a request be made Upon any railroad company by
the owner or oo:upant of abutting property to place
a car to be loaded or unloaded on said track oppo-
site or in front of such property, then and in that
event cars may be loaded or unloaded Upon such
track, but the same shall be so loaded or unloaded
only in front of or opposite the abutting property
whose owner or OCcupant has made the request;
provided, further, that, should any person other
than abutting owner or OCcupant desire the priv-
ilege of loading or unloading cars upon such track,
such person shall first procure the consent of the
owners or occupants of abutting property on both
sides of the streets where it is desired to load or
unload such car, and if such consent is obtained
such car may be loaded or unloaded by such par-
Engineering Division
50 West 13th Street
Dubuque, Iowa 52001-486-1
(319) 589-4270
(319) 589-4149 FAX
THEC~
DUBaetuE
5t-'f~~
CC~[P1f
May 9, 2000
Mr. James L. Gibson
Rail Regulation & Operations
Office of Rail Transportation
Iowa Department of Transportation
800 Lincoln Way
Ames, IA 50010
RE: Docket No. RR-RO-00-1, Request for Approval & Train Speed Ordinances,
City of Dubuque, Iowa
Dear Mr. Gibson:
On September 13, 1999, the City of Dubuque requested that the Iowa Department of
Transportation approve City Ordinance No. 39-1 regulating train speeds through the
City, a copy of which is attached. This Ordinance was passed in 1976. The City's
Ordinance limited freight trains to 25 miles per hour through the City,
The City is concerned about the notification of increased train speeds issued by the
I&M Rail Link on September 7, 1996. In its press release, I&M indicated that they
intended to begin running trains at speeds up to 40 miles per hour through Dubuque,
a possible increase in 1 5 miles per hour.
The City is concerned with the safety of its at-grade crossings with this increase in
speeds, According to the September 15, 1999, lOOT report of at-grade rail crossings
in Dubuque, the Predicted Accident (PA) Rates for all the crossings through Dubuque
range only from a high of 0.0484 to a low of 0.0002. The City of Dubuque does not
want to see this safety level compromised by allowing faster trains.
Service
People
Integrity
Responsibility
Innovation
Teamwork
Mr. James L. Gibson
Page 2
May 9, 2000
The City Council, City Manager, and City staff have reviewed several calls, particularly
from residents along the northerly section of the I&M tracks who are concerned for
their safety, given the close proximity of their homes to the tracks. They are also
concerned about additional noise, and the greater potential of a derailment, possibly
involving hazardous chemicals. Some of these letters are attached.
The City of Dubuque feels very strongly that the freight trains should continue to be
limited to 25 miles per hour, as has been the case since at least 1976, and that City
Ordinance 39-1 be approved by the Iowa Department of Transportation. Your
assistance in keeping these at-grade rail crossings as safe as possible would be
appreciated. Should you have any questions, you may reach me at 319-589-4270.
Sincerely,
J1~J!~
Michael A. Koch
Public Works Director
MAK/vjd
Via Facsimile Transmission
cc: Michael C. Van Milligen, City Manager
Barry Lindahl, Corporation Counsel
Bill Schlickman, Engineering
A ttachs.
-., -........- I 1-
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-
<:f!/ld1~
THECmOF C~
DUB~E
Engineering Division
50 West 13th Street
Dubuque, Iowa 52001486-1
(319) 5894270
(319) 58941-19 FAX
5J.r-7~~;'4.:
September 13, 1999 :r:~dI
Mr. Richard E. Kautz, P.E.
Development Engineer
Iowa Department of Transportation
East Central Iowa Transportation Center
430 Sixteenth Avenue SW
Po Box 3150
Cedar Rapids, IA 52406-3150
:"
RE: Train Speed Limits
Dear Dick:
It has come to the City of Dubuque's attention that Section 39-1 of the City of
Dubuque Code of Ordinances limiting train speeds through the City may require Iowa
Department of Transportation appro'val.
The City Ordinance {Section 39-1} prohibits train speeds greater than 30 mph for
passenger trains and 25 mph for freight trains.
The City has recently been notified by I & M Rail Link, in a letter dated September 7,
1999, a copy of which is attached, may begin running trains through the City of
Dubuque at 40 mph as early as September 10, 1999.
Section 27F.31 of the Code of Iowa states that local ordinances regulating train
speeds are subject to the approval of the Department of Transportation. As of this
writing, the City can find no verification that the City's Ordinance was ever submitted
or approved by the Department.
The City of Dubuque is hereby submitting a copy of Section 39-1 of the City's Code
of Ordinance and requesting that the ordinance be approved under the provisions of
the Code of Iowa, Section 27F.31. Please advise if you need further information
regarding the City's request at this time.
Sincerely,
'l;!dKd
Michael A. Koch
Public Works Director
Attach.
cc: Michael C. Van Milligen, City Manager
~rvice
People
Integrity
Responsibility
Innovation
Teamwork
r\~
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Sec. 39-1. Speed restrictions.
No passenger train shall be operated over and
upon the grade crossings in the city at a speed of
greater than thirty (30) miles per hour, nor any
freight train at a speed greater than twenty.five
(25) miles per hour.
(Code 1976, ~ 32.2)
Sec. 39-2. Unlawful deposits.
No debris or substances of any kind shall be
deposited or permitted to be deposited Upon any
street where railroad tracks are located and where
cars are placed to be loaded or unloaded either by
abutting owners or occupants of property or other
persons.
(Code 1976, ~ 32-3)
Sec. 39-3. Maintenance of crossings, ri~hts-
Of-way.
(a) Notice to repair. Whenever the councilor
manager shall consider repairs necessary Upon
street, avenue or alley crossings or rights.of-way
occupied by the railroad company operating within
the city, the councilor manager shall notify such
company to make the required repairs, which no-
tice may be served Upon or mailed to any officer of
the company and shall state the time and place
when and where such repairs shall be made and
prescribe the materials with :which such repairs
shall be constructed.
(b) Per(ormance o( work by city Upon company's
(ailure to make repairs after notice. All repairs to
railroad crossings or rights-of-way ordered made
by the councilor manager shall be fully performed
without delay at the expense of the company so
notified. However, should repairs be ordered and
not made by any company the councilor manager
shall proceed to have such repairs made.
(c) Collection o( cost3 o( repairs made by city.
The expense of repairs made by the city pursuant
to paragraph (b) of this section shall be charged to
the company and collected, if necessary, by suit of
any court of competent jurisdiction.
Cd) Manner o( repairs; materials; superuision.
The manner in which the repairs provided for in
paragraph (a) of this section shall be made and
2477
......, ......1-......1..' ",-. .\.,.:
RAILROADS
f 39-4
the materials to be used shall be designated by
the manager and the work shall be performed
under the supervision of the manager and the en-
gineer.
(e) Proration of expenses between railroa.ds.
Whenever repairs are ordered to be made, pur.
suant to this section, at any crossing which is used
by more than one railroad, each railroad shall
bear such proportion of the expense thereof as the
amount of space occupied by such railroad bears
to the whole amount of repairs ordered. The man-
ager shall determine the amount of repairs which
each road shall make and the manager's decision
shall be final.
CD Effect o( section as to preuious grants. Wher.
ever grants to railroad companies, made previous
to August 2, 1920, prescribing the manner in
which repairs at railroad crossings shall be made
are in conflict with this section, the same are
hereby repealed and the provisions of this section
are intended to supersede the same.
(Code 1976, ~ 32-4)
Sec. 39-4. Use of certain track as team track
restricted.
Track No.3 located Upon Jackson Street in the
city and extending from Sixth Street to Eleventh
Street and owned and constructed by the TIlinois
Central Railroad Company shall not be used as a
"team track" for the loading or unloading of rail-
road cars tbereon; provided, however, that should
a request be made upon any railroad company by
the owner or occupant of abutting property to place
a car to be loaded or unloaded on said track oppo-
site or in front of such property, then and in that
event cars may be loaded or unloaded Upon such
track, but the same shall be SO loaded or unloaded
only in front of or opposite the abutting property
whose owner or occupant has made the request;
provided, further, that, should any person other
than abutting owner or occupant desire the priv-
ilege of loading or unloading cars Upon such track,
such person shall first procure the consent of the
owners or occupants of abutting property on both
sides of the streets where it is desired to load or
unload such car, and if such consent is obtained
such car may be loaded or unloaded by such par.
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Trainmast~r
I &M Rail Link
i\larquetu, Iowa 52153
i\lonica Meissner
1902 Garfield A venue
Dubuque, Iowa 5200 I
Dear Sir or Madam:
This letter is in reference to the 40-mph train speed within city limits, past a r~sidencial ar~a and through
crossings without signal lights or gates. This is not a very good id~a; in fact, this is very short sighted.
Behind our house, at the bottom of a steep bank, with industrial buildings locat~d on th~ side opposite the
steep bank, lie the I&M Rail Link tracks. The. tracks run through land that we Own with the railroad having
a Right of Way agreement. As of yet, I have not researched what liberties the Right of Way agr~~menc
gives the railroad. But I wonder does it give the railroad the freedom to travel as fast as they want without
regard to safety? Does it give the railroad th~ right to travel through residential areas carrying hazardous
substances that may endanger our lives in case of a leak or an accident? The faster the crain, the greater [he
risk of an accident, and the greater the noise. For these reasons, safety and noise, I'm r~qu~sting no
increase in the speed of trains through our town. '
You can reach me by mail at my home address above; or call me at (319) 532-230 I. I look forward to your
swift attention to this matter.
Sincerely,
"--1h~ ~~
Monica Meissner
Cc: Mayor Terry Duggan
City Manager Mike Van Milligan
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September 7, 1999
Telegraph Herald
801 Bluff Street
Dubuque, lA 52001
RE: Press release
5'B'7 lfl..,.'1
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lQl0 EA~ 1OM~~~y f'O.>.O
0AV1~. ,owA '~7.~:l
131" :J,.o.L7600
131 QI '4.4-~ rAX
The I & M Rail Link is upgrading their track and Signal equipment through
Dubuque. I & M Rail Link Northern Division Superintendent, Steve Norton
said that speeds could be Increased as soon as September 10th. Track
speeds are governed by the condition of the track and equipment. The
upgrades will enable the I & M to run trains at speeds up to 40 MPH
through Dubuque. I & M Rail Link's maximum track speed is currently
20MPH through Dubuque. Todd Law who is both an Operation 'Lifesaver
presenter and I & M 's Chief of Police. warns the public to Look, Listen and
Uve! Several rail grade crossings in Dubuque will be affected to include
the Lincoln Ave and Hawthorne crossings.
Yours truly,
r-:f-L/~
Todd Law
IMRL ChIef of Police
cc: Ken Koff
Steve Norton (tcu)SlL- ON
Kerth BeckIe
Mark Milewsky
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