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WASHINGTON � Tucked inside the huge homeland security legislation signed into law by President Bush recently is a provision to ensure that the Federal Railroad Safety Act of 1970 does not preclude state lawsuits against railroads by injured persons in general and the residents of a small city in North Dakota in particular. The provision, entitled “Railroad Pre-emption Clarification,” is in the new law implementing the recommendations of the 9/11 Commission, but its impetus can be traced to Jan. 18, 2002. Early that January morning, a Canadian Pacific train derailed on the western edge of Minot, N.D., releasing a cloud of anhydrous ammonia, a toxic farm fertilizer. One person died and hundreds were treated for burns and breathing difficulties. A class action was filed in federal district court in North Dakota, alleging a variety of state law claims. But the claimants subsequently found themselves in a Catch-22 legal situation. A federal district judge certified an injury class action, but Canadian Pacific Railway Ltd. moved to dismiss the claims, arguing they were pre-empted by the Federal Railroad Safety Act (FRSA). The judge agreed and because the act itself creates no cause of action, the plaintiffs were left without a remedy. ‘Unfair to bystanders’ The federal judge in the Minot case said that while the FRSA has ensured national uniformity of railroad safety regulations, “it has also absolved railroads from any common law liability for failure to comply with the [federal] safety regulations.” The act, he added, is “unfair to innocent bystanders and property owners who may be injured by the negligent actions of railroad companies.” Mehl v. Canadian Pacific Railway, 417 F. Supp. 2d 1104 (D.N.D. 2006). Enter the North Dakota congressional delegation and others, such as the California Public Utilities Commission, who wanted to eliminate the act’s pre-emptive effects. In a letter to Congress last year, the California commission said that, in 1991, California was the scene of a derailment and subsequent toxic-substance spill near Dunsmuir that killed all life in the upper Sacramento River, one of two primary water resources for Californians. The Southern Pacific Transportation Co. (now Union Pacific Railroad Co.) train that spilled the deadly toxin into the Sacramento River, like the Canadian Pacific Railway train in Minot, was not cited by the Federal Railroad Administration (FRA) for a single violation of any federal railroad safety regulation, according to the commission. “The State of California has found the response by the FRA to such catastrophes to be unsatisfactory. And California has been prevented from improving rail safety regulation because the FRSA preempts our enactment of more effective state regulation for rail safety and security,” wrote the commission’s president. The new law’s pre-emption provision makes clear that nothing in the FRSA shall be construed to pre-empt an action under state law seeking damages for personal injury, death or property damage. It also establishes that states may adopt additional or more stringent laws, regulations or orders relating to railroad safety or security under certain specified circumstances. And, the provision is retroactive, applying to all pending state law causes of action arising from events or activities occurring on or after Jan. 18, 2002. “All we wanted � railroad injury lawyers � was a level playing field,” said railroad injury litigator Richard M. Shapiro of Hajek, Shapiro, Cooper, Lewis & Appleton in Virginia Beach, Va. “That’s what this legislation did. All the act says is Congress didn’t intend to wipe out state causes of action unless certain circumstances existed, like a federal provision that explicitly covered this topic.” Canadian Pacific’s counsel, Timothy Thornton of Briggs and Morgan in Minneapolis, said, “I think there are serious questions about the statute; it’s open to challenge.” The American Association of Railroads did not oppose the FRSA amendment, said spokesman Tom White. “It won’t open the door to more lawsuits,” he said. “That was a very unusual decision that occurred in the Minot case. In fact, railroads have generally been sued very frequently in the past.” But Shapiro said the Minot decision was not unusual. Railroad lawyers, he said, persuaded judges to accept the pre-emption argument in part all over the country. “Railroads got a wedge and kept making it bigger and bigger,” he said. “When it got to the point where it was snuffing out entire causes of action, they went too far.” The final language was the work of Senator Daniel Inouye, D-Hawaii, chairman of the Senate Commerce, Science and Transportation Committee. “It accomplished all that we hoped for,” said a spokesman for Senator Byron Dorgan, D-N.D., a member of the state congressional delegation that supported the elimination of the act’s pre-emptive effects. Canadian Pacific has settled a majority of the Minot cases, but roughly 100 are still pending.

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