"When the case returns, none of our precedent will be binding on us. Thus, in light of the district court's consideration of the issue after the en banc court has received the case, we give the district court authority on remand to reach the result it considers appropriate even if it is inconsistent with any of this court's precedent. What we have actually held in this opinion to be the law, though, must be applied as precedent."

This has been a big issue in California over the years especially when the ports of LA and LB are humming. Back in 2012, The First District Court of Appeal issued an interesting decision concerning the ability of cities to address (through criminal proceedings) violations of General Order ("GO") No. 135 of the California Public Utilities Commission (PUC) regulating the length of time a stopped railroad train may block public grade crossings. The City of Richmond brought such proceedings on behalf of the People against Burlington Northern Santa Fe (BNSF), which was convicted of a misdemeanor for violating that GO. BNSF asserted that the GO on which the conviction was based is preempted by either the Interstate Commerce Commission Termination Act (ICCTA; 49 U.S.C. § 10101 et seq.<https://www.lexis.com/research/buttonTFLink?_m=37898045146fb7682b92ea75c62f30a3&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2012%20Cal.%20App.%20LEXIS%201077%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=43&_butInline=1&_butinfo=49%20U.S.C.%2010101&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzk-zSkAz&_md5=571e74a8b7811bbad564f237c5845c30>) or the Federal Railroad Safety Act (FRSA; 49 U.S.C. § 20101 et seq.<https://www.lexis.com/research/buttonTFLink?_m=37898045146fb7682b92ea75c62f30a3&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2012%20Cal.%20App.%20LEXIS%201077%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=44&_butInline=1&_butinfo=49%20U.S.C.%2020101&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzk-zSkAz&_md5=93531663a02d080f4f703b8c1af628d8>). The trial court found the order not to be preempted by either the ICCTA or the FRSA. The First District reversed. It concluded that GO No. 135 is preempted by federal law (ICCTA). People v. Burlington Northern Santa Fe Railroad, 2012 Cal. App. LEXIS 1077 (Oct. 16, 2012). I faced these issues as the Riverside City Attorney and back in 2007, we entered into an MOU (attached) with the UPRR addressing these stoppages and avoiding litigation. Although preemption was an issue, UPRR worked with us because we compiled substantial data showing the number of stoppages affecting public safety vehicles and thus the significantly extended responses times. It worked well between that time and the time I left to take over as County Counsel. The BNSF RR refused to work with us but became more sensitive to the public safety issues to limit unnecessary stoppages. For a city of over 90 square miles, Riverside has two major rail lines trisecting the city and stoppages can really impact the movement of public safety vehicles. Gregory P. Priamos County Counsel County of Riverside gpriamos@rivco.org<mailto:gpriamos@rivco.org> 951.955.6300 [cid:image001.png@01D806F7.08555B10] CONFIDENTIALITY NOTICE: This communication is intended for the use of the individual or entity to which it is addressed and may contain attorney work product and/or attorney client information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this communication is not the intended recipient or the employee or agent responsible for delivering this communication to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify our office by reply e-mail or by telephone and immediately delete this communication and all its attachments. From: Chuck Thompson <cthompson@imla.org> Sent: Tuesday, January 11, 2022 12:36 PM To: Federal Law List Serve <federal@lists.imla.org>; cityattorneys@lists.imla.org; Landuse@lists.imla.org; 'policeadvisors@lists.imla.org' (policeadvisors@lists.imla.org) <policeadvisors@lists.imla.org>; counties@lists.imla.org Subject: [Counties] News of the Day - Railroad crossings - Indigent Bail - Garner and Scalia Writing Academy CAUTION: This email originated externally from the Riverside County email system. DO NOT click links or open attachments unless you recognize the sender and know the content is safe. 10th Circuit - Federal Preemption - Railroads - Blocked at grade crossings For those of you too young to remember, riding a train over a long distance was one of the great joys of years gone by. While in the US it was never quite so plush or nice as depicted on the "Orient Express", it was still a great joy. The soft sway of the train rocking you to sleep, the constant clickety clack of the rails and the expansive views of the countryside passing by as you read or just relaxed. Then, there was the dining car which offered some excellent meals, a good drink and often a car with entertainment. Those days are unfortunately past and this case has nothing to do with the joys of railroading, but involves the problem with at grade crossings and what seems the subliminal evil that railroad engineers display in blocking at grade crossings for what seems like ages. Firetrucks and EMS are blocked from providing emergency services, people cannot get home or to work or other engagements and the fear of being blocked often cause people to take dangerous risks to avoid the blockade. To remedy this OK passed a measure called the Blocked Crossing Statute which prohibited trains from blocking at grade crossing for more than 10 minutes. Having done so and being ticketed, BNSF (a Berkshire Hathaway company) sued to challenge the measure alleging it was preempted by federal law. The lower court agreed as did the 10th Circuit. It's now up to the federal government to take some action to address this problem. My guess is that the train will move more quickly than will the feds. BNSF vs. Edmond https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110630282.pdf<https://urldefense.com/v3/__https:/www.ca10.uscourts.gov/sites/ca10/files/opinions/010110630282.pdf__;!!JTyGX330HN5x6Ko!TUmWB-znHvpMNBvmRMgd6-8iNilwuqVV-SVQJ9IW1T8JOFvj-F1LyktIDaAvzUA$> Fifth Circuit - State Actors - Section 1983 - Bail Schedules - Indigents -Sheriffs - County Judges A friend once described some older court opinions as those that were written before paragraphs were invented. Often those opinions suffered from other faults that made them difficult to read if not unintelligible. In an effort to replicate those opinions of old (other than the paragraph problem), the Fifth Circuit en banc decided to reverse a lower court's decision regarding a suit aimed at attacking the Dallas County bail system. BTW, I was pretty far down the ladder in my writing class too, so, maybe I'm not a good judge of deft writing. I'll not try to translate from the opinion in detail, but report only that the majority concluded that certain Dallas County and District judges were state officials acting on behalf of the state when they developed bail schedules that magistrate judges used in determining bail. Thus, the injunction could not lie against Dallas County or these judges. Whether the Sheriff in Texas is a state or county official will be left for another day. Questions of standing and abstention raised their heads but seemed to avoid any sort of direct shot as the court remanded the question of abstention to the lower court reserving the remainder of the case for a decision once the lower court makes that decision. In closing, enjoy this quote from the majority as it sends the abstention question back down: "When the case returns, none of our precedent will be binding on us. Thus, in light of the district court's consideration of the issue after the en banc court has received the case, we give the district court authority on remand to reach the result it considers appropriate even if it is inconsistent with any of this court's precedent. What we have actually held in this opinion to be the law, though, must be applied as precedent." Daves vs. Dallas County https://www.ca5.uscourts.gov/opinions/pub/18/18-11368-CV2.pdf<https://urldefense.com/v3/__https:/www.ca5.uscourts.gov/opinions/pub/18/18-11368-CV2.pdf__;!!JTyGX330HN5x6Ko!TUmWB-znHvpMNBvmRMgd6-8iNilwuqVV-SVQJ9IW1T8JOFvj-F1LyktIwjSA1Vk$> Charles W. 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