Since 2001, nearly all of the federal and state courts that have considered the issue have continued to follow in the same line of reasoning used by the Friberg court. See, e.g., CSX Transp., Inc. v. Williams , No. 3:16CV2242, 2017 WL 1544958, at *2 (N.D. Ohio 2017) (unpublished opinion) (holding that the ICCTA preempted the Ohio statute "because it purports to regulate rail transportation by dictating how railroads conduct their operations at crossings"); People v. Burlington N. Santa Fe R.R ., 209 Cal. App. 4th 1513, 148 Cal.Rptr.3d 243 (2012) ("The State of California, by regulating the time a stopped train can occupy a public rail crossing, has necessarily and directly attempted to manage railroad operations."); Burlington N. & Santa Fe Ry. Co. v. Dep't of Transp ., 227 Or. App. 468, 206 P.3d 261 (2009) (holding that Oregon's antiblocking regulation was "by its express terms, an ‘operating rule’ and a ‘regulation of rail transportation’ "). The State asks us to adopt the contrary view taken by the Indiana Court of Appeals in State v. Norfolk S. Ry. Co. , 84 N.E.3d 1230 (Ind. App. 2017).

{¶ 20} This conclusion accords with the overwhelming weight of authority from other jurisdictions that have held that the Termination Act preempts state antiblocking laws like R.C. 5589.21. E.g., BNSF Ry. Co. v. Hiett, 22 F.4th 1190, 1194 (10th Cir.2022); Elam v. Kansas City S Ry. Co., 635 F.3d 796, 807 (5th Cir.2011); State v. Norfolk S Ry. Co., 107 N.E.3d 468, 477 (Ind.2018); State v. BNSF Ry. Co., 56 Kan.App.2d 503, 513, 432 P.3d 77 (2018); People v. Burlington N. Santa Fe RR, 209 Cal.App.4th 1513, 1531, 148 Cal.Rptr.3d 243 (2012); Burlington N. & Santa Fe Ry. Co. v. Dept. of Transp., 227 Or.App. 468, 475, 206 P.3d 261 (2009); Canadian Natl. Ry. Co. v. Des Plaines, 1st Dist. No. 1-04-2479, 2006 WL 345095, *3 (Ill.Ct.App.2006); Seattle v. Burlington N RR. Co., 145 Wash.2d 661, 669, 41 P.3d 1169 (2002); see also Delaware v. Surface Transp. Bd, 859 F.3d 16, 21-22 (2d Cir.2017) (statute prohibiting nonessential train idling at night in certain places preempted by the Termination Act); Griffioen v. Cedar Rapids & Iowa City Ry. Co., 914 N.W.2d 273, 286 (Iowa 2018) ("laws, ordinances, and common-law damage actions challenging where and when railroads placed their railcars on their transportation lines * * * are generally preempted" by the Termination Act); Anderson v. BNSF Ry. Co., 375 Ark. 466, 475, 291 S.W.3d 586 (2009) (Termination Act preempts state proceeding to order rail carrier to reopen private crossing).

We note that the “blocked crossing” cases on which the Railroad seeks to rely are not relevant to Fox’s claim for inverse condemnation. See Elam, 635 F3d at 796 ; Friberg v. Kansas City Southern R. Co., 267 F3d 439 (5th Cir. 2001); Burlington Northern & Santa Fe R. Co. v. Dept. of Transp., 206 P3d 261 (Or. App. 2009); City of Seattle v. Burlington Northern R. Co., 41 P3d 1169 (Wash. 2002); Canadian Nat. R. Co. v. City of Des Plaines, 2006 WL 345095 (Ill. App. 2006). Both Elam and Friberg involved claims of negligence per se based on a state “anti-blocking” statute — i.e., a law that purported “to regulate the amount of time the train [could] occupy a crossing.”

; People v. Burlington N. Santa Fe R.R. , 209 Cal.App.4th 1513, 148 Cal. Rptr. 3d 243, 256 (2012) ("The State of California, by regulating the time a stopped train can occupy a public rail crossing, has necessarily and directly attempted to manage railroad operations. Accordingly, we conclude that general order No. 135 is preempted by the ICCTA."); Burlington N. & Santa Fe Ry. Co. v. Dep't of Transp. , 227 Or.App. 468, 206 P.3d 261, 264-65 (2009) (holding that a blocked-crossing law was preempted under ICCTA, even though it included an exception for moving trains, because the law "specifically target[ed] rail transportation" and "[n]ot all railroad ‘operations’ are conducted while the train is continuously moving"); see alsoWalton v. Kan. City. S. Ry. Co. , No. 1:18-cv-00004-GHD-DAS, 2019 WL 1460883, at *2 (N.D. Miss. Apr. 1, 2019) (holding that plaintiff's negligence claim for blocking the track "threaten[ed] to control how long a company may leave its trains on a track" and that the ICCTA "vests the right to regulate that action exclusively with the STB"); Paulk v. CSX Transp., Inc. , No. CV-509-045, 2010 WL 11520587, at *2-3 (S.D. Ga. July 9, 2010) (holding that plaintiffs may not seek state-law remedies in connection with the railroad's blockage of a side track because "their claims are expressly preempted by the plain language of § 10501(b)"). The Court finds the reasoning in these cases instructive.

Because § 5589.21 purports to regulate rail transportation - namely, by limiting the amount of time a train can block a crossing - the ICCTA categorically preempts that law. Burlington N. & Santa Fe Ry. Co. v. Dep't of Transp., 206 P.3d 261, 264 (Ore. App. 2009) (ICCTA categorically preempted Oregon regulation forbidding trains to block crossings for more than ten minutes); see also CSX Transp., Inc. v. City of Plymouth, 93 F. Supp. 2d 643, 663 (E.D. Mich. 2000) ("Under the law, any limitation on the amount of time a train can block a crossing must come from the federal government."). Given my determination that the ICCTA preempts § 5589.

Id. at 1031-32 (stating "For if local authorities have the ability to impose 'environmental' permitting regulations on the railroad, such power will in fact amount to 'economic regulation' if the carrier is prevented from constructing, acquiring, operating, abandoning, or discontinuing a line.") Here, however, Oregon's statutes regulate the size of the ballast and the slope of the right of way along the Union Pacific tracks; laws which have a remote or incidental effect on rail transportation. See e.g, Ass'n of Am. R.R. v. S.Coast Air Quality Mgmt Dist., 622 F.3d 1094, 1097-98 (9th Cir. 2010) (stating that generally the ICCTA does not preempt state laws if they are of general applicability and do not interfere with interstate commerce); Burlington N. & Sante Fe Ry Co. v. Dept. of Transp., 227 Or. App. 468,47273 (noting that the ICCTA does "not usurp the right of state and local entities to impose appropriate public health and safety regulation on interstate railroads so long as those regulations do not interfere with or unreasonably burden railroading.") Accordingly, I find that Cook's Oregon Walkway Statutes claim is not preempted by the FRSA or the ICCTA.

This holding mirrors those of several other jurisdictions addressing blocked-crossing preemption under the ICCTA. SeeElam , 635 F.3d 796 ; Friberg , 267 F.3d 439 ; Maynard v. CSX Transp., Inc. , 360 F.Supp.2d 836 (E.D. Ky. 2004) ; People v. Burlington N. Santa Fe R.R. , 209 Cal. App. 4th 1513, 148 Cal.Rptr.3d 243 (2012) ; Burlington N. & Santa Fe Ry. v. Dep't of Transp. , 206 P.3d 261 (Or. Ct. App. 2009) ; City of Seattle v. Burlington N. R.R. , 145 Wash.2d 661, 41 P.3d 1169 (2002) (en banc). For this reason, we need not get sidetracked by incidental burdens on railroad operations, see Delaware , 859 F.3d at 18 ("[T]he ICCTA preempts ‘all state laws that may reasonably be said to have the effect of managing or governing rail transportation, while permitting the continued application of laws having a more remote or incidental effect on rail transportation.’ "

By its language, the ICCTA "broadly precludes state regulation of those matters [specified in 49 U.S.C.A. § 10501(b)]." Burlington N. Santa Fe Ry. Co. v. Dep't ofTransp., 227 Or.App. 468, 206 P.3d 261, 263 (2009). The broad nature of Congress's preemption under the ICCTA is further evidenced by the ICCTA's expansive definitions.

December 23, 2009. Appeal from the 227 Or App 468. Petitions for Review Denied.

In fact, after Tyrrell was decided, several courts have reached the opposite conclusion. (See Elam v. Kansas City Southern Ry. Co. (5th Cir.2011) 635 F.3d 796( Elam );Friberg, supra, 267 F.3d 439;Maynard v. CSX Transp., Inc. (E.D.Ky.2004) 360 F.Supp.2d 836( Maynard );BNSF v. DOT (2009) 227 Or.App. 468, 206 P.3d 261;City of Seattle, supra, 41 P.3d at pp. 1171–1172.) A number of lower federal courts and some state courts have analyzed preemption of antiblocking regulation under the FRSA.