Argued: January 30, 2019
from the United States District Court for the Western
District of Kentucky at Owensboro. No. 4:17-cv-00137-Joseph
H. McKinley, Jr., District Judge.
Jennifer Parker Andrews, KING, DEEP & BRANAMAN,
Henderson, Kentucky, for Appellant.
E. Tauber, MAYER BROWN LLP, Washington, D.C., for Appellee.
Jennifer Parker Andrews, H. Randall Redding, KING, DEEP &
BRANAMAN, Henderson, Kentucky, for Appellant.
E. Tauber, MAYER BROWN LLP, Washington, D.C., Christopher J.
Ferro, MAYER BROWN LLP, Chicago, Illinois, Rod Payne, BOEHL
STOPHER & GRAVES LLP, Louisville, Kentucky, for Appellee.
Before: COLE, Chief Judge; BATCHELDER and DONALD, Circuit
1966, the City of Sebree, Kentucky (the "City")
enacted an ordinance requiring CSX Transportation, Inc.'s
("CSX") predecessor to obtain approval from city
council before commencing any maintenance or construction
project that would result in any change in grade at any of
the six railroad crossings in Sebree. After a dispute
surrounding the ordinance in 1979, the predecessor railroad
company and the City entered into a settlement agreement
whereby the rail company agreed not to raise the height of
one crossing by more than 0.4 feet and not to raise the
height of another crossing at all. In 2017, CSX notified the
City of its intent to perform maintenance that would result
in raising four of the crossings, which led to the current
lawsuit. CSX sought, and the district court granted, a
permanent injunction prohibiting the City from enforcing the
ordinance or settlement agreement. Because we agree with the
district court that both the ordinance and settlement
agreement are preempted by federal railroad statutes, we
active railroad line runs through Sebree, a 1.6 square mile
city in Webster County, Kentucky. The rail line, operated by
CSX, crosses six streets in Sebree: Jefferson, Webster, Main,
Dixon, Mill, and Sebree Springs. Each of the crossings is a
"peaked" or "humped" crossing, meaning
that there is a change in grade from the street to the top of
the rails with the railway tracks sitting higher than the
road. The height of the crossings has long been a source of
concern for the City. According to the City, the elevation of
the crossings creates two primary safety concerns: (1) line
of sight obstructions for vehicles and pedestrians crossing
the tracks, and (2) a risk that low-profile vehicles and
vehicles with long wheel bases, such as trucks and buses,
will become stuck or disabled. Understandably, the City does
not want the height of the crossings to be raised any
11, 1966, the City enacted an Ordinance (the
"Ordinance") requiring Louisville and Nashville
Railroad ("L&N")-CSX's predecessor in
interest-to obtain prior approval from the city council
before commencing maintenance or construction that would
result in any change in grade at any of the crossings in
Sebree. The Ordinance imposes a fine of not less than $50.00
per day until the change is corrected.
the Ordinance, L&N raised the crossings at Jefferson and
Webster in 1978 without seeking prior approval from the City.
The City informed L&N of its intent to enforce the
Ordinance if L&N attempted to raise the crossings at Main
and Dixon. L&N thereafter filed a lawsuit in the Webster
County Circuit Court seeking to invalidate the Ordinance and
requesting an injunction preventing the City from enforcing
it. The circuit court issued an order in July of 1979,
denying L&N's request for an injunction and
temporarily enjoining L&N from making any repairs that
would raise the elevation of the Main Street or Dixon Street
crossings without the approval of Sebree's city council.
In November 1979, L&N and the City resolved the
litigation by entering an agreed order of dismissal (the
"Agreed Order") that removed the temporary
injunction against L&N. Pursuant to the Agreed Order,
L&N agreed not to raise the level of the tracks at Main
Street more than 0.4 feet above its then-current level, and
not to raise the level of the tracks at Dixon Street at all.
later, CSX, as L&N's successor in interest,
determined that it needed to conduct maintenance on the
tracks in Sebree to correct the problem of fouled ballast.
Ballast refers to the crushed rock used to support tracks and
allow proper drainage. The ballast becomes fouled when
smaller particles clog the space between the crushed rock,
reducing the ability of water to drain freely. There are at
least two maintenance methods that can be utilized to correct
fouled ballast. One method, surfacing, entails lifting the
track, which breaks the bottom of the ties-the supports to
which railroad rails are fastened-free from the compacted
fouled ballast, and then raising the track to the desired
height and forcing ballast back underneath. Another method is
undercutting, which is the removal of all ballast between the