CSX TRANSPORTATION, INC. v. EASTERWOOD
Legal provision: 45 U.S.C. 434
Argument of Howard J. Trienens
Chief Justice Rehnquist: We'll hear argument now in number 91-790, CSX Transportation, Inc. v. Lizzie Beatrice Easterwood, and vice versa.
Mr. Trienens: Mr. Chief Justice, and may it please the Court:
This case arises from a railroad crossing accident in which respondent's husband died.
Every one of these crossing accidents is a serious matter, and when the number of accidents reached the thousands with the increase in highway traffic, this became a matter of national concern.
Congress faced up to this problem in the Federal Safety Act of 1970.
It authorized the Secretary of Transportation to issue regulations and standards for all areas of railroad safety and it directed the Secretary to undertake a coordinated effort toward solutions to the grade crossing problem under his authority under both the Railway Safety Act and the highway legislation.
Congress went further.
It directed that the Secretary's regulations shall be nationally uniform, and Congress provided a sweeping preemption provision as follows.
A State may adopt or continue in force any law, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement.
Now, the until such time language was to avoid a lapse in responsibilities between the time the statute passed and the regulations were issued.
In 1973, Congress went further.
It passed a highway safety act in which the States were required to survey all highway rail crossings and implement improvements.
Now, as authorized and directed by Congress, the Secretary has issued many, many regulations, and many of those include safety at grade crossings.
As to each such regulation, the subject matter which it covers, the State laws covering the same subject matter are no longer in force under section 434.
Unknown Speaker: At what time, at what date was the State law on grade crossings preempted in your view?
Mr. Trienens: 1977.
Unknown Speaker: And that was at the time of the first regulation was issued?
Mr. Trienens: Yes.
Unknown Speaker: What did that regulation require?
Mr. Trienens: It provided that the responsibility for determining the selection of devices... and we're talking now only about that State law tort duty, not all of them, but the State law tort duty of picking a reasonable selection of a device, gate, sign, flashing lights, which device shall be done.
That responsibility was placed exclusively upon the State authorities.
Unknown Speaker: Even there there was going to be a lapse between the time the State could implement its program and the time when the railroads might begin withdrawing from this field.
Don't you think?
Mr. Trienens: Well, possibly.
I think the literal reading of this and the practical reading of the statute is that when the responsibility shifted, the responsibility shifted.
Of course, this is now, 15, 20 years ago.
So the problem of the lapse doesn't apply in this case at all.
Unknown Speaker: Well, except I think we should identify the point at which preemption occurred.
Mr. Trienens: Under the statute, the preemption occurred when the Secretary issued a regulation covering the subject matter of the State requirement.
That's what the statute says.
That's what Congress did, and that's the way it works.
Unknown Speaker: The problem--
I'm just pressing Justice Kennedy's point.
I think it is an important point because although it's time past and it's not involved in this case, it does bear upon whether your interpretation of when the preemption occurs is a reasonable one.
Your interpretation leaves a time period, namely the period after the promulgation of that regulation imposing upon the States the obligation to make that decision of what kind of mechanism you use and the point at which the State actually issues such a decision with respect to each crossing.
During that time period, there's no regulation by anybody--
Mr. Trienens: No, no.
Unknown Speaker: --railroads, State, Federal, nobody.
Mr. Trienens: --The question is who has got the responsibility and the duty.
There are lots of duties at Federal... at grade crossings.
There's a duty to select the device.
There's a duty to maintain the device.
There's a duty to have a whistle, a duty to blow a whistle.
Some are preempted, some aren't.
Unknown Speaker: And you say that during that lapsed period--
Mr. Trienens: No, no, not the--
Unknown Speaker: --if... during that period, after the promulgation of that regulation, if there were an accident at a rail crossing, the person injured would not be able to sue the railroad because it was no longer the railroad's responsibility to guard the crossing by some device, nor could he sue the State because the State--
Mr. Trienens: --No.
Unknown Speaker: --He couldn't sue the State.
Mr. Trienens: Why?
Unknown Speaker: Because the statute had just been passed.
You have to give the State a reasonable time.
The State is certainly not negligent in failing to do it yesterday.
Mr. Trienens: These things didn't happen overnight.
The statute was in 1970.
The statute putting the burden on the States was in... saying that they should be responsible was in 1973.
This regulation was proposed.
The States knew about it for 4 years, 1977.
It just didn't come out of nowhere.
So, this isn't a question of all of a sudden, oh, my goodness, I'm responsible--
Unknown Speaker: No.
I'm talking about an accident that occurred a week after, a week after this regulation.
Mr. Trienens: --It's also 4 years after Congress passed the Highway Safety Act and section 130 that said that the States had this responsibility.
So, the answer is the triggering of the preemption comes at the time the Secretary issues the regulation.
That's what the statute says.
This is 4 years after Congress had said the States should have this responsibility.
So, here's 4 years in which they could gear up for it.
There is no problem with lapse here, certainly not applied here.
Unknown Speaker: --Mr. Trienens, I'm having a... I guess a different problem about identifying the scope of the subject matter, and let me just give an example.
This is not the only one that I have in mind, but let me just give this as an example.
With respect to those cases in which, as I understand it, Federal funds are used to improve the condition of the... the safety conditions at a grade crossing, and it is determined I guess in accordance with the manual that some kind of a device should be installed, as I understand the reg, the reg provides that the device is to include automatic gates.
Well, the provision that it should include automatic gates leaves open... in fact, it seems to imply... that other devices and other means of warning might be appropriate and might be imposed, which I assume refers back to imposed under State law.
And I further assume, since I don't see anything to the contrary, that it does not... that that assumption does not distinguish between State law in the sense of law under which the State as a government might decide what the devices should be or State law, such as common law or tort law, which might decide the duty incumbent on the railroad which they could only satisfy by certain devices.
So with respect to that particular example, doesn't the regulation itself imply that there is going to be some State law relating to the safety at the grade crossing which survives even that regulation?
Mr. Trienens: No, no.
What it does imply is there is a State responsibility to select and determine the appropriate device at each crossing.
That responsibility is a responsibility imposed by Federal law.
Unknown Speaker: Why does it imply a responsibility as opposed simply to a remaining power?
We don't know what the... we can't tell what the responsibility is for the reg, and it seems to leave it simply open, and I suppose the answer would have to be an answer under State law.
Mr. Trienens: No, because the reg in question... you're referring to I believe part 646 of the manual.
Unknown Speaker: Yes, that's right.
Mr. Trienens: The one I'm talking about is 924 and 655.
The one I'm talking about is pursuant to section 130 of the railway... of the Highway Safety Act of '73 and particularly on the regulations, which are the regulations, after all, which trigger the preemption.
924 and 1204 are the ones that put the responsibility on the States.
And if there were ever any doubt about that, the manual, which is also a... part 655, as incorporated in the CFR, says the determination of need and selection of devices at grade crossings is made by the public agency.
And if there's any doubt about that one, it goes on in a later section, 8(d), and says under the heading selection of systems and devices.
Unknown Speaker: Well, does the manual have the force and effect of law?
Mr. Trienens: It's a regulation.
It's a regulation and a standard.
It so says in the CFR issued by the Secretary.
Unknown Speaker: But even assuming that, isn't it still... number one, your argument basically is that by placing a responsibility on a State or local agency, that that is a regulation on the subject matter within the meaning of the Federal statute.
And I guess I still have the problem that later and more detailed regulations seem to suggest that more has been left open than your argument would conclude.
Mr. Trienens: Well, the manual and the way the States wanted it, because there was a... there was an effort to have further detail and elaborate formulas on whether gates or not gates... the way the States wanted it, knowing they had this responsibility, was to say there was a variety of circumstances, and they wanted more flexibility.
The regulations I'm talking about not only impose the responsibility for selection of devices upon the State officials, but tells them how to go about it.
It says based on an engineering study at the particular crossing, you shall decide what's appropriate.
And then in case you were wondering whether that was exclusive responsibility, the regulation also says traffic control devices shall be placed only by the authority of a public body.
They have the authority, responsibility, and the exclusive responsibility.
Now, is this... what's the State law duty we're talking about here that... prior to preemption?
And I won't invent it myself.
I'll read you from plaintiff's brief.
It says the railroad's common law duty is determining that improved grade crossing devices are needed and implementing devices.
That's the common law duty or actually Georgia's statutory duty which they would impose on the railroad.
Now, these regulations I've been reciting put exactly that, the responsibility, the exclusive responsibility for determining the need for a device and implementing the device on the State authority.
Unknown Speaker: How do we know that the subject matter is the subject matter of all State rules affecting safety at grade crossings as opposed to State rules or simply rules affecting the need for devices, which is simply a subset of the former?
Mr. Trienens: Well, I'm only talking now about the duty to select the appropriate device.
I'm not talking about lots of other duties that a railroad has at a crossing.
Railroads are going to continue to be sued at crossings, and in fact, of the five issues that Mrs. Easterwood raised, three of them are going back for trial or disposition in the trial court one way or the other.
Whatever this Court does on the two narrow duties we're talking about, this case goes back for trial, or it goes back for further proceedings at least, on the three duties that we admit are duties at crossings which were not preempted.
Or at least there was no claim in this case they were preempted, and it goes back.
We're talking about the duty to select as between gates, lights, and signs.
Who makes that determination?
The plaintiff says under Georgia law, the railroad is responsible.
The Secretary has issued regulations saying that the States are exclusively responsible.
Unknown Speaker: Mr. Trienens, why don't... why isn't a better explanation of what you're arguing for that this is conflict preemption?
I have the same trouble that Justice Souter does, squeezing this within the terms regulation, order, or standard relating to railroad safety.
I mean, there's no standard contained in that regulation.
It just allocates the responsibility for issuing the standard.
Now, I can... if you're making the argument that it is inconsistent with placing that responsibility upon the State itself to instead, by State common law, impose that responsibility upon the railroad, then I can understand.
That's a conflict preemption argument.
Mr. Trienens: Well, our argument in our brief makes both the conflict point and the point that the 434 covers the subject matter.
It certainly... nobody on the other side has ever argued this wasn't a matter relating to railroad safety, whether you have a gate or a sign or a light.
That's a matter relating to safety.
No question about that.
The question is whether the Secretary has issued a regulation covering the subject matter, and he has covered it like a blanket on the narrow question of who determines whether it's a gate or a light.
He covered the subject matter.
How can... how more can you cover it?
Unknown Speaker: Do you think--
Mr. Trienens: --That's why I emphasized that point.
Unknown Speaker: --Is it sufficient to say that the subject matter of the State requirement is who's responsible?
Mr. Trienens: No, no.
It's more than that.
Unknown Speaker: That's a strange subject matter.
Mr. Trienens: No, no.
It's more than that.
It's not only who's responsible, but how you go at it.
It tells the State how to go at deciding... how to go to the particular grade crossing and how to decide whether to have a gate or not have a gate.
It tells them how to make the engineering judgments.
Your question is whether the Secretary went far enough in the detail.
You know, you could have formulas.
There's mathematical formulas that people... you know, if there's X trains times Y trucks, there ought to be a gate, and if not, no gate.
The States resisted that and said no, no, that isn't the way to do it.
The way you've got it in the regulations is the way it ought to be.
It tells them what to do.
It tells them who's responsible, and it tells them how to do it.
What more... how more can you cover it?
Unknown Speaker: Does the plaintiff's theory include a failure... a theory that somehow the railroad failed to identify the existence of a hazardous crossing?
Mr. Trienens: Well, I... their theory apparently, as stated in their brief, is that the railroad had the responsibility... and presumably implicitly we failed to perform this duty... of determining that improved grade crossing devices are needed and to implement them.
In other words, it was our duty to decide that there should have been a gate there and we didn't do it.
I think that's their case.
Unknown Speaker: Or to at least identify and call to the attention of the State authorities the hazards?
Mr. Trienens: Well, they make that point, but it's... first place, if it's their responsibility... and after all, the railroads work with these people all the time.
The work... the railroads do have an obligation, when called upon, to work with these diagnostic teams that go out to each of these crossings.
So, the railroads are on top of this.
It also has nothing to do with this case because what happened here was there was a diagnostic team, and the railroads were fully in on it.
The diagnostic team went to Cartersville, Georgia.
It went... there are five crossings in Cartersville, Georgia.
They went and they looked at all of them, and they said all right, let's... tentatively let's have gates at all of them.
The City of Cartersville said wait a minute.
At Cook Street, it's too wide.
You got to build an island in the middle of it in order to accommodate a gate.
Putting that island in will cause a hazard to trucks, and therefore, the State authorities who are responsible for selecting devices weighed the highway safety alone, the highway safety in relation to the railroads, and it decided at Cook Street they wouldn't make them build the island.
They would have flashing lights, in fact, six flashing lights on signs and booms, and that they decided... they decided... that there would not be gates at Cook Street.
The railroads didn't decide this.
Unknown Speaker: Well, would that give rise to a State law defense in the cause of--
Mr. Trienens: Well, what it does give rise to is that the States are responsible.
The States are not immune.
The Secretary has made a survey and found that most States there's no immunity.
Unknown Speaker: --Well, excuse me.
Do you think it would give rise to a State law defense?
Mr. Trienens: To whom?
Unknown Speaker: To the railroad?
Mr. Trienens: I don't know because all I'm concerned about here is the fact that having this process, having the Federal regulations prescribing the process, and having a statute that says that when you cover this very subject matter, it's preempted, we don't get to that.
They say, well, you know, maybe you would have a nice State law defense, and maybe a jury would find for you.
But on this narrow issue, this is not for a State court or a State jury.
Unknown Speaker: Mr. Trienens, are you going to talk at all about the speed issue?
I have one question or two questions about that if you're not.
Mr. Trienens: Well, the... on the speed issue, that's the one where we are the respondent.
The court below found there was preemption.
The Solicitor General agrees on preemption on that.
The Secretary has a regulation on speed that has the allowable speed over this and other tracks.
We're not dealing with train operations generally.
We're not talking about lookout here.
We're talking about speed alone, and also speed is not a separate subject.
Speed is not a subject separate from what device do you have at the grade crossing because they're interrelated under the Secretary's regulations.
But any event, our position is the subject matter of train speeds has been covered and it's preempted.
Unknown Speaker: What happens if the train went 70... went over the speed limit?
Would that be a matter of Federal law or State law?
Mr. Trienens: It would be a violation of Federal law, but you could sue in the State court on a common law basis under a case Justice Brennan wrote called Crane.
In other words, there would be a violation of this regulation and the railroad would be subject to a suit.
Unknown Speaker: --You could be covered.
And what if the plaintiff claimed that the local... that the speed that the train traveled at was incompatible with essentially a local hazard?
What... how does that play out in your view?
Mr. Trienens: Well, the local hazard... I think the court of appeals below and the Solicitor General, we all agree.
The local... essentially the local hazard is not implicated in this case because if you had said every grade crossing is a local crossing, that would just swallow the national rule that they got out.
Unknown Speaker: Well, but what would be?
What if the plaintiff thought that because of the dense population and a lot of bushes around or something that the 60-mile-an-hour limit was dangerous?
Is there any way... is that... is a claim of that kind preempted, or how does that play out?
Mr. Trienens: Preempted, but there's the City of Cartersville.
If they thought that not only could have gone, but had right sitting in their lap gates at that crossing and they didn't want them.
But if they... under your question, if a city thinks there ought to be gates there, they go to the State department of transportation and say give us a gate.
Unknown Speaker: No, not a gate problem, just that because of the particular local conditions, the 60-mile-an-hour speed... it seems to me you could read the statute as saying the speed limit is not always going to be... there could be an essentially local safety hazard which would indicate that a lower rate of speed would be necessary to avoid the danger at that local place.
Mr. Trienens: Well, if a State... not the city, but if a State were to come along and say because there's something very unusual about the Horseshoe Curve... and I picked that because that's in the legislative history... and therefore, somehow there ought to be a special speed limit there, then I think... then that local exception would apply, but nobody has tried--
Unknown Speaker: And that could apply even in a jury trial, even without a regulation.
Mr. Trienens: --No.
It has got to be a State who identifies something extraordinary and then has a statewide--
Unknown Speaker: It's a more stringent law, rule, regulation, order, or standard.
That can't be by adjudication in your view.
Mr. Trienens: --No.
It has got to be a State that has got to get it out.
Unknown Speaker: I guess I have a problem that goes one step beyond Justice Stevens', and again it's a textual problem.
The regulation on speed... it was at 213.9... speaks simply in terms of the maximum allowable speed which again, by its terms, seems to imply to me that there may be some source of authority that could appropriately set a speed as appropriate, but less than that which is allowable, which again implies that there is some State authority left to do this.
Mr. Trienens: Well, we don't agree that there's any such implication, and one of the reasons is that the Secretary of Transportation has a number of motives, one of which is to get the trains through.
Congress has beaten on the Amtrak to speed up the trains, and the speed is... the allowable speed is the speed you're allowed to go at, period, as far as we're concerned.
That's what we think the Secretary... regulations call for, and once he has covered that subject matter, it's preempted.
Unknown Speaker: Suppose the railroad knows that the main road is closed and that a lot of school buses are taking a detour over an unmarked crossing.
Does the railroad have a duty to slow down?
Mr. Trienens: The railroad... no, no.
The question of the--
Unknown Speaker: Snowstorm, fog, no duty to slow down?
Mr. Trienens: --No.
They got a duty to look out, but not as... speed as such.
Unknown Speaker: Suppose they see the school bus stalled.
Do they have a duty to slow down then?
Mr. Trienens: That's a lookout question.
Then you have to take all appropriate measures to avoid the collision.
And of course, there's a problem there.
You got this heavy train and you can't swerve.
Oh, I don't say that at all.
We've got a lookout problem.
He sees the bus.
He has got to everything he can--
Unknown Speaker: Do the regulations talk about a lookout problem, or is this something--
Mr. Trienens: --No.
That's not preempted.
Unknown Speaker: --Why?
Can you tell me why that is?
Mr. Trienens: Well, the Secretary, not having issued a regulation on that, the State law continues in force.
Unknown Speaker: Well, I'm not sure when a lookout problem begins and when a speed problem ends.
Mr. Trienens: Well, if he's going at the allowable speed, he looks, and under your question, he sees a school bus sitting there, he has got to take every step to... first, he has got to maintain an adequate lookout, and secondly, he has got to take every feasible step to avoid the accident.
That's a State law question, not preempted, not involved.
I just want to say one thing about this Federally funded problem that the Solicitor General injected in this case after cert. It doesn't make any sense under 434.
There's no basis for the distinction, and it produced entirely goofy results.
If you have three crossings identically protected, one with Federal funds, one previously erected, and one built with State funds, one is preempted.
That makes no sense at all.
Besides it's... ironically, all of them in this case, all the Cartersville ones were improved with Federal funds.
So this argument created for this case doesn't apply to this case.
Unknown Speaker: Thank you, Mr. Trienens.
Ms. Mahoney, we'll hear from you.
Argument of Maureen E. Mahoney
Ms Mahoney: Mr. Chief Justice, and may it please the Court:
This is the first time in 20 years that this Court has had an opportunity to interpret the preemptive scope of the FRSA, and we'd like to make three basic points about how we think that it needs to be interpreted.
And the first is that we share the view of the parties that 434 should not be interpreted to preempt common law tort actions against railroads for violations of their duties to operate trains in a safe manner.
Second, we think that it is also important, however, to recognize that under the language when the Secretary has covered the subject matter of a railroad's duty, that standard of care must govern.
It is a Federal standard of care defining the railroad's... the content of the railroad's safety obligations under the circumstances that must control in this case and in other cases.
So, the critical question becomes whether, in fact, the Secretary has covered the subject matter of the particular claims that are at issue.
As to those claims, on the grade crossing issue, we do not think that the regulations cover the subject matter of these claims.
On the speed issue, we think that they do, and let me explain why.
Unknown Speaker: Well, Ms. Mahoney, on the grade crossing area--
Ms Mahoney: Yes, Your Honor.
Unknown Speaker: --how should we view the Manual on Uniform Traffic Control Devices which says the determination of need and selection of devices at a grade crossing is made by the public agency?
Ms Mahoney: We do not disagree that the determination has to be made by the public agency.
What this is referring to is final authority.
It has always been the case--
Unknown Speaker: Well, so, could there be a State tort law obligation on the railroad then to identify the need?
Ms Mahoney: --Absolutely, Your Honor.
We think that the way the manual works, it's simply talking about the system that's in place.
We have to recognize that when we're dealing with grade crossings, although the railroad has the right-of-way across the tracks, the highway is there as well, and the State has to have authority over whether a gate arm is going to be installed on its highway.
It can't allow railroads to go and put up gate arms because they think it's good for safety.
Unknown Speaker: Authority over it, Ms. Mahoney, but not responsibility for it.
The regulation does not simply repeat the situation in place.
At common law, the State has no responsibility to assure the safety of each intersection.
The State has the final word.
The railroad could not put up a gate or a flashing signal without the State's consent.
But it seems to me an enormous change for the Federal Government to say henceforth the State shall have a positive responsibility to assure the safety of these intersections, whereas before under State law, it was the railroad's responsibility.
And it seems to me quite a different system and a system that seems to me in conflict with the old common law rule.
Ms Mahoney: Your Honor, we don't see what you... we do not see anywhere in the statutes or the regulations that say that it is the State's responsibility to ensure that the grade crossings are safe.
Unknown Speaker: It does not say that?
Don't they have a responsibility to make studies and to determine what should be put up?
Ms Mahoney: --That's different than the MUTCD.
Now we're talking about the Federal funding program, and yes, to use Federal funds, they have a responsibility to make sure that Federal funds are used properly to survey and prioritize projects for the use of those Federal funds.
The language of the regulations and the language of the statute does not speak in any way to what the State's obligations are with respect to grade crossings that are not improved with Federal funds.
And, in fact, the regulation, 646.210, specifically says that State laws that govern the railroad's share of grade crossing improvements shall not be applied when there are Federal aid projects.
The clear import of that language is that State laws requiring railroads to pay for grade crossing improvements, to undertake the duty to do so, are still in place.
Unknown Speaker: I'm not talking about payment.
I'm talking about responsibility to make the decision.
Is it not the case that for both Federally funded and non-Federally... is it the Government's position that the State has no responsibility under the regulations to inspect grade crossings and to make a determination of what safety features are necessary at those crossings unless Federal funds are being used?
Is that the Government's position?
Ms Mahoney: Unless... only when Federal funds are being used.
Unknown Speaker: Only when Federal.
The State has no responsibility to inspect other crossings at all.
Ms Mahoney: No, not under Federal law.
Under State law, they ordinarily do, but not under Federal law.
The Federal Government did not say as a condition of getting Federal funds, you must go out and implement improvement projects at grade crossings that you're not going to use Federal funds for.
Unknown Speaker: Doesn't the Federal Government--
Ms Mahoney: That would be a Pennhurst problem.
Unknown Speaker: --Ms. Mahoney, doesn't the Federal Government--
--Let her finish her answer.
Ms Mahoney: I'm sorry.
Under Pennhurst, to say to the States that you now will share all of the... you will have the entire responsibility for improving grade crossings throughout your State, you'll not only have to pay for them, but you'll have to assume whatever tort liability there is, would be a condition that is certainly not explicit in the Federal funding statute.
We have consistently interpreted that, the Federal funding provisions, to apply solely to Federally funded projects.
Unknown Speaker: But, Ms. Mahoney, this Manual on Uniform Traffic Control Devices is not speaking about Federally funded projects.
Ms Mahoney: --No, it is not, Your Honor.
Unknown Speaker: It just says the determination of need and selection of devices at a grade crossing--
Ms Mahoney: Yes.
Unknown Speaker: --is made by the public agency--
Ms Mahoney: Yes, it does.
Unknown Speaker: --I take it, meaning the State.
Ms Mahoney: This was adopted by virtue of... the history is important here.
A bulletin in 1977 adopted this, incorporated into part of the manual.
And we think that our interpretation is perfectly consistent.
In other words, need and selection.
A railroad identifies a hazardous crossing.
It comes to the State as every citizen must do when it needs approval, and it says I need a gate arm here.
The State has to determine whether a gate arm is needed there and whether it's appropriate to have it installed.
That's what this language speaks to.
Unknown Speaker: Well, that is certain State responsibility--
Ms Mahoney: State--
Unknown Speaker: --imposed by Federal regulation.
Ms Mahoney: --But it doesn't say that the State must go out on its own and determine what crossings need to be improved.
It doesn't say that it has a financial responsibility or duty to go out and do that.
That was left to State law, and in fact, even in the '89 report to Congress, the Secretary was quite clear that the extent of responsibilities, the joint responsibility, for improving grade crossings still rested with the States.
Unknown Speaker: Ms. Mahoney, does the... are you finished with your answer?
Ms Mahoney: Yes.
Unknown Speaker: Does the State have an obligation under Federal statutes to make a survey of all grade crossings?
Ms Mahoney: To get Federal funds, yes, it does, Your Honor, but it is not required to use that survey for implementing projects that are not Federally funded.
It is solely so that the Federal monies can be used in an appropriate way.
Unknown Speaker: And this State, the State of Georgia, I take it, has undertaken that survey, has it not?
Ms Mahoney: Yes, it has.
Unknown Speaker: And your position is that they are required to survey these nonfunded intersections just for the fun of it.
Ms Mahoney: No, Your Honor.
It's not for the fun of it.
It's so that when Federal monies are used, there can be a determination about where they ought to be used within the State.
Unknown Speaker: But they're not used.
I mean, why can't... they would save a lot of money to say we will decide in advance which ones we'll use Federal money on and we'll survey those.
But that's not what this says.
Ms Mahoney: Well, you can't--
Unknown Speaker: --you shall survey every one in the State.
Ms Mahoney: --Your Honor, how can you decide which ones you're going to use it on, if the whole point is you want to prioritize, unless you survey all of them?
Yes, they have to survey them, but we do not tell them, unlike... contrary to what the railroads have said, we do not tell them what hazard index they have to use, how they have to rank them, and we certainly don't tell them--
Unknown Speaker: No, you don't, and your position on the requirement that they shall determine the need is that they shall determine the need if the railroad comes and says there's a need.
Otherwise, they have no responsibility.
Ms Mahoney: --We're talking about under the MUTCD.
Unknown Speaker: That's right.
Ms Mahoney: That's right.
The MUTCD says nothing can be--
Unknown Speaker: That's a very strange interpretation.
Ms Mahoney: --Nothing can be installed on a public roadway unless the responsible local authority says that it's appropriate.
That is true not only with respect to crossing devices, but also with respect to every kind of stop sign that a business may want to have at its corner or at its driveway.
All determinations of this kind--
Unknown Speaker: But there may be a need when no one asks to put up anything.
The railroad doesn't ask a thing.
In that case, nobody determines the need.
Ms Mahoney: --That's right.
No one determines needs under those circumstances except that under State law, the regulatory authorities do assume responsibility for this.
So, the problem that we're describing, it doesn't really happen, but it occurs under the regime of State law, not under Federally mandated duties.
We are not telling the States that they must improve their Federal... their grade crossings without the use of Federal funds.
And I would emphasize that throughout the history of this problem, that the reports to Congress that the Secretary has done have been quite clear that this is the scheme that was in place before the funding statutes were enacted or supplemented in 1973, and did not recommend any changes in that existing scheme.
In the '89 report, for instance, 3-1, that was submitted to Congress, the Secretary specifically said that the railroads' responsibilities are governed by Federal standards when Federal funds are used, but otherwise there is joint responsibility at the crossings, and that that is not necessarily a wrong concept.
We do... thank you very much, Your Honor.
Unknown Speaker: Thank you, Ms. Mahoney.
Ms. Colston, we'll hear from you.
Argument of Tambra P. Colston
Mr. Colston: Mr. Chief Justice, may it please the Court:
The railroad has gained numerous benefits already from the Federal Railroad Safety Act.
They now ask this Court to benefit you... benefit them further by finding that two traditional common law duties are preempted.
And we have to get to the subject matter of what is preemptive because the regulation is so clear.
The regulation in this case, section 434, bears repeating.
It starts out, Congress declares--
Unknown Speaker: Where can we find this in your brief, Mrs. Colston?
Mr. Colston: --Your Honor, it is all the way through there.
At the very beginning... page 9, Your Honor, at the very bottom it begins.
Unknown Speaker: Thank you.
Mr. Colston: Congress declares that the laws, rules, regulations, orders, and standards relating to railroad safety should be nationally uniform to the extent practicable, thus beginning the section with a recognition that all laws relating to railroad safety can't be completely uniform.
Then the second section.
A State may adopt or continue in force any law, rule, regulation, order, or standard relating to... relating to... railroad safety.
That's preservative of the State's powers.
Then the preempting provision.
Until the Secretary covers the subject matter.
This statute is drawn very narrowly.
Therefore, it must be construed very narrowly and especially in light of the presumption against preemption when you've got such traditional State police powers.
Unknown Speaker: Why do you say the statute is drawn very narrowly, Mrs. Colston?
Mr. Colston: Your Honor, without 434... the preemption might have even been broader without it, but it preserves State laws relating to railroad safety until the Secretary covered the subject matter, and that--
Unknown Speaker: Well, yes, but that doesn't strike me as either a narrow or a broad statute.
It strikes me as a fairly common preemption provision.
Mr. Colston: --Yes, Your Honor, it is fairly common, but the language used... the language Congress chose... we have to assume they knew the meaning of what they were saying.
Unknown Speaker: Well, that's exactly the language I'm referring to, and I'm telling you I don't see how you can classify that as a narrow preemption provision.
Mr. Colston: Your Honor, I classify it as such because it says that State law is preserved relating to railroad safety, and then when it says what's preempted, what does it say?
The Secretary has to cover the subject matter, not... the Secretary didn't say, well, when the Secretary passes a regulation that relates to railroad safety.
The Congress said cover the subject matter.
That's why I say the statute is narrowly drawn.
It's also supported by the legislative history, Your Honor.
The legislative history in a railroad congressional hearing addressing Federal and State roles under the FRSA... this is what Congress said.
The States may adopt or continue in force any law, rule, regulation, et cetera, until the Secretary has promulgated a specific rule.
This prevents the mere enactment of a broad authorizing Federal statute from preempting the field.
Then to ensure even more that State law wouldn't be arbitrarily displaced, they included the local safety hazard exception, which says States may adopt rules, regulations that the Secretary has already covered when there's a local safety hazard and it's not incompatible with the Federal rule and it's not an undue burden on interstate commerce.
Reading this and then reading it as this Court always does in light of its stated purpose, the purpose of the FRSA, not as CSX would have you believe, is not uniformity.
Congress described the purpose as this act to promote safety in all areas of railroad operations and reduce accidents and deaths and injuries caused by railroad related accidents and to reduce damage caused by any accidents involving any carrier of hazardous materials.
And that's very important when we talk about speed.
The Secretary has not covered the two subject matters at issue here under the express terms of section 434 read in light of its stated purpose.
With regard to speed, first of all, section 213 does not regulate what the State's common law regulates.
It does not cover it.
It may relate to speed, but it doesn't completely cover the subject matter.
The scope of the act... the beginning of it says--
Unknown Speaker: The statute does not say completely cover the subject matter.
Mr. Colston: --No, Your Honor.
Unknown Speaker: It said... it says it has to be a... have adopted a rule, regulation, order, or standard covering the subject matter of such State requirement.
Mr. Colston: Yes, Your Honor.
Only the congressional history says completely, but it doesn't say relating to either, and it doesn't say addressing.
And Congress could have chosen those words.
Congress said cover.
And that does not cover the subject matter.
The beginning of section 213, Your Honor, says this is all about track safety standards, and it says, well, we're going to govern the geometry.
We're going to govern the roadbed.
We're going to govern the number and the quality of crossties along a section of track.
Then Congress comes up and says now, based on these factors, how many crossties you have, based on how much... how many joints and rails and all this kind of stuff, they say we're going to classify this section of track right here at Cartersville, Georgia as class 4.
A class 4 track you can travel across based on track structure, geometry, and all that... you can travel across it at 60.
Now, if the railroad wants to upgrade it to a class 6, they can travel at 110.
Now, then you can see that they were addressing one thing.
You can read it from the text of that act.
They were governing how fast a train can travel and not derail, and that's all--
Unknown Speaker: Ms. Colston, I thought about this when I was reading it.
Do these speeds... these speeds you say are totally determined by the character of the roadbed.
Mr. Colston: --Absolutely.
Unknown Speaker: Does that mean that in these rail yards that are near Union Station down here if the roadbed is good enough, the speed would be 60 or 110?
Mr. Colston: Yes, Your Honor.
Yes, Your Honor.
According to section--
Unknown Speaker: Are they shown that way on the national maps, that if you want to, you can do 110 in the rail yard?
Mr. Colston: --Your Honor, I don't know what the national maps show.
I will tell you that if this Court finds that speed is preempted under this section, the only thing that has to be considered in traveling 110 is whether you're sitting on a class 6 track, and that doesn't have anything to do with grade crossing safety, weather, fog, schools in the nearby area, high volumes of traffic going across the area, nothing that the common law controls.
You can see also--
Unknown Speaker: You say that common... under your view, I take it, every municipality in the State of Georgia could pass a speed limit for trains passing through it?
Mr. Colston: --Yes, Your Honor, and in most cases they do.
Ours is... our case is common law.
There's a lot of cases out there that did deal with municipal ordinances, and those cases held that it was preempted, but not preempted for the reasons--
Unknown Speaker: Those cases held what was preempted?
That the local ordinances--
Mr. Colston: --The local speed ordinances because they said they--
Unknown Speaker: --That the local ordinances were invalid?
Mr. Colston: --In the lower courts.
That's what the lower courts were saying, but they were--
Unknown Speaker: I'm asking what is your position if a municipality passes an ordinance regulating the speed of trains.
Mr. Colston: --I believe, Your Honor, that ordinance is not preempted.
It does not... this section 213 does not cover the subject matter of that requirement because that requirement would be based on the same factors as the State's common law, the traffic--
Unknown Speaker: And different municipalities could have different speed limits in the State of Georgia.
Mr. Colston: --Yes, Your Honor, and I understand the concern that you're getting at.
But the purpose of the FRSA is not to burden interstate commerce... to place... take a burden away.
The purpose is to promote safety.
Wouldn't it be counterproductive to allow the railroads to travel at 110 miles an hour through Cartersville, Georgia at a crossing with 150 feet of sight distance, that they have these trucks going over all the time?
Unknown Speaker: Well, you don't deny that the Secretary could do that if he wanted to.
Mr. Colston: He sure could.
Unknown Speaker: Your point here is just that this particular regulation doesn't do it.
Mr. Colston: That's absolutely right, Your Honor.
Unknown Speaker: So, if your... I mean, you acknowledge, do you not, that if the Secretary wanted to establish uniform speed limits for trains, he could.
Mr. Colston: He certainly could.
Unknown Speaker: You just say he hasn't done it here.
Mr. Colston: --No, sir, he has not, and I'm not certain how long he'd be Secretary if he did because the headlines, if they said... can you imagine saying Congress says we can travel 110 miles an hour across... through grade crossings on all railroad tracks in the United States.
How likely would it be that it would have been passed?
Then, also to support that this regulation only covers derailments and track classification is Senate report 91-6--
Unknown Speaker: I wonder if you're right about that.
Supposing they had adequate... the gates went down.
When the gates are down and the lights are flashing, how... why do you care how fast the train is going?
Mr. Colston: --That would be great, Your Honor, but 65 percent of the crossings out there have no active protection at all.
Unknown Speaker: But what I'm suggesting is that perhaps the protection against the particular accidents you describe must rely on the crossing problem rather than the speed of the train.
Mr. Colston: It's both very important, Your Honor.
As far as--
Unknown Speaker: But if the crossing is adequately protected, I don't know why, if I'm sitting there in my car, I wouldn't rather have the train go by real fast rather than slow.
Mr. Colston: --Yes, sir.
I know what you mean.
One of the witnesses in this case was kind of upset because she didn't get to get her free bag of coffee by getting to the grocery store at a certain time, and so she was very aggravated by this.
But, Your Honor--
Unknown Speaker: It's a safety factor too, is it not?
Mr. Colston: --Yes, it is.
Unknown Speaker: I mean, not everybody is as patient as Justice Stevens and would sit there if it was a slow--
Mr. Colston: Absolutely, Your Honor, and it is a safety factor.
However, the Secretary noted in the reports to Congress that it's also a safety factor to have these trains slow down because of the common sense involved.
The slower the train is going, the more time that the motorist has to perceive the train's presence and to react to it, like at this crossing with only 150 feet of sight distance.
At 35 miles an hour, it was upon Mr. Easterwood in 3.2 seconds.
Imagine if you doubled that to 60 miles an hour.
Your Honor, as far as if a gate arm always were in place at every crossing in Georgia, and we had unlimited Federal funds and could just put them everywhere, and they always worked properly, they didn't ever malfunction, and they didn't ever give false warnings, and they didn't ever do any of those things, you're right.
Speed would not be an issue, but that's not the reality of it, sir.
The reality of it is that there's not gate arms at every crossing.
In fact, most of them there's not.
Many of the crossings are not even a recipient of Federal funds because they're not public crossings to begin with.
Unknown Speaker: What's your position if a grade crossing has been improved with the crossing gate using Federal funds?
Mr. Colston: Your Honor, if the crossing has been improved--
Unknown Speaker: Or pardon me.
Let's say crossing lights using Federal funds.
Mr. Colston: --We look at those, the gate arm regulations, strictly as funding regulations.
That's all they are.
Every one of them--
Unknown Speaker: So, your answer is no preemption.
Mr. Colston: --No preemption, sir.
And as Justice O'Connor pointed out, they would have an excellent defense if they did what was required by 646.214 in State law... in State court.
And what jury is going to hold them liable for doing no more than they were allowed to do?
That's the way our system works.
Unknown Speaker: What jury is going to hold a railroad liable for doing everything that the railroad--
Mr. Colston: Your Honor, I believe in the jury system.
Unknown Speaker: --Come on.
Mr. Colston: I believe in the jury system completely, and I do believe that more times than not they do the right thing.
And they know that when you put gate arms up and the State says that's enough, they have enough sense to know that you don't hold them liable just because you got a poor, little old lady over here that doesn't have a husband anymore.
They have sympathy, but not that much.
I know because I'm in front of juries all the time.
Now, these are funding regulations, and funding regulations, Your Honor, do not displace State tort law unless they do so with such explicitness that the States know by accepting Federal funds how much of their law was going to be displaced.
That's not the case here.
Every regulation cited applies to Federal fund projects.
The prioritization is to receive Federal funds; even the Secretary states her position... or his position as overseer to ensure that Federal money is appropriately spent.
The regulations that were promulgated by the Secretary did just that, ensure that Federal money is appropriately spent and, of course, the Federal Government wants to do that.
And why do they give it to the States?
You all were asking that question earlier.
Why do they give it to the States and doesn't that preempt?
They don't have a mechanism for giving it directly to the railroad.
It has to go through the States.
Unknown Speaker: As I understand it, they have to survey every one of the crossings in the State.
Private as well as public ones.
Mr. Colston: No, sir, not the private crossings at all.
Unknown Speaker: No, not the private, just the public ones.
Mr. Colston: Just the public crossings.
That would be possible--
Unknown Speaker: But they can't look at a map and just say, well, we know.
You know, this is a little rinky rural road.
No big deal.
It's hard to believe that every crossing was required to be examined solely in order to, quote, prioritize.
Certainly you could have eliminated 80 percent of the crossings in the State knowing that those are not the most important ones where you're going to need Federal money.
Mr. Colston: --Well, maybe they do.
Maybe they do take the rinky-dink ones, and they don't worry about those, the ones that are out in the country.
Unknown Speaker: They're not allowed to.
They have to... under the regulations--
Mr. Colston: Well, they're supposed to look at them all.
Unknown Speaker: --they have to do all of them.
Mr. Colston: They're supposed to look at them all.
I don't know how in practice it actually works.
But think about that, Your Honor.
Think about if you accept the Solicitor General's argument, is that once that Federal money is spent, you're preempted.
Then every time that diagnostic team walks down a section of track, down any area in, say, 10 miles and they see three or four crossings, just because they walked down there and their salaries were paid with Federal funds, you're preempted according to the Solicitor General, which would... that can't be.
It can't be.
Take the situation here where a motion detector was--
Unknown Speaker: Mrs. Colston, were there Federal funds involved in the site of this case?
Mr. Colston: --Your Honor, Mr. Trienens was correct up to a point, that they did decide... they did put it... well, let me say this.
They put a motion detector years ago, and the reason why they put the motion detector is they were upgrading four crossings.
When they upgraded those four crossings, they decided to put gate arms at all of them, and that included Cook Street.
They wanted to do that.
But they started at West Avenue.
Unknown Speaker: No.
My question was were Federal funds involved at the site in this case.
Surely you can give a simpler answer than that.
Mr. Colston: I wish I could.
There were, but they were used to improve the West Avenue crossing because the motion detector at Cook Street wouldn't work with the new circuitry at West Avenue.
So, yes, Federal funds were spent to put a motion detector at Cook Street some years ago, but it wasn't for the safety of Cook Street.
It was to make the West Avenue circuitry work because you have to change it all.
It's all tied in together.
Unknown Speaker: And the accident occurred at Cook Street?
Mr. Colston: --Yes, sir.
That's why it's such a complicated answer.
Now, as far as the gate arms and the city saying no, you're not going to do that, I want to tell you what happened.
What happened was is it is big, and they said you can't put an island here because we have lots of tractor-trailer traffic.
And it is.
It's an industrial area, and you know how wide they have to turn when making a turn.
If they put an island in the middle of it, they couldn't have negotiated that turn.
So, they said you got to put extended gate arms on, the longer ones.
And the railroad said, well, then we got to raise our communication lines because they're going to interfere.
And they said, okay, we'll do it, and everybody went on their merry way.
And nobody ever did anything.
The railroad never reported back that they had completed raising their communication lines.
Then Mr. Easterwood is killed, and they're saying, boom, you're preempted because you wouldn't let us do it.
It's not the case.
That's definitely not the case.
And that shows that if you find that these are anything other than funding regulations how difficult the question is going to be in the lower courts as to when preemption starts, when it ends, what it turns on, the lapse.
Is there a lapse?
Is that a problem?
It's just common sense that these are nothing but funding regulations that do not supplant State tort law.
Unknown Speaker: Are Federal funds--
Are Federal funds used to conduct the survey?
Mr. Colston: Yes, sir, they are.
The States are given a certain amount of funds, and part of it's used for the surveying process, some to pay the diagnostic team.
And so there you go.
The diagnostic team walks down the track.
Boom, you're preempted under that analysis.
The Secretary in the reports to Congress noted that because the railroad does have tort liability in cases such as... in railroad crossing accidents, this continues, a just... a continuing interest... excuse me.
This justifies a continuing interest on the part of the railroad in the total safety effort.
If they were to be preempted, Your Honors, from placing gate arms at a hazardous crossing, it would remove all incentive to improve safety, and that would be in direct opposition to the purpose of the Federal Railroad Safety Act.
I'm sorry, Justice Scalia, you had a question.
Neither in this case is there implied preemption, and I... correct me if I'm pronouncing this wrong, but in Cipollone, it... you all agreed that if you have an express preemption provision, this causes you to not have to look at whether it occupies the field because just by there being a provision, it's assumed that Congress did not want to go any further than what was stated in the provision.
So far as conflict preemption, there is no conflict here either, Your Honors.
CSX, first of all, can easily comply with both of the State requirements at issue here.
First of all, the Solicitor General and the railroad makes the argument that... its counter on the speed argument is because emergency braking will place them in a position where that would cause a derailment, and they all concede that this was aimed at derailments.
Section 213 was aimed at derailments.
Emergency braking is not the question here.
If you slow down to what's reasonable, you shouldn't ever have to emergency brake.
And a point that came out earlier during Mr. Trienens' argument was very interesting, the fact that the proper lookout claim still remains in this case.
The proper lookout claim couldn't possibly remain if the speed is preempted because--
Unknown Speaker: You have to look out.
You just don't have to reduce your speed.
Mr. Colston: --Yes, Your Honor.
That kind of makes the State requirement superfluous.
You know, well, there he goes.
And that would not make sense.
The Secretary... well, let me state then also it is supported in the legislative history that these were just for derailments, and that's all they were for is for derailments.
In Senate report 91-619, the Senate members were talking about recent catastrophes that had happened from derailments, and they cited one case, one example, where a car derailed.
And it was carrying hazardous chemicals, and it caused an explosion.
The explosion destroyed the city's major industry.
It destroyed several homes, and it contaminated the water supply for several months.
Then they found out that a $50 track repair would have made... caused that derailment not to occur, that that would have happened.
If... Congress, the Senate members, noted that because of that, they thought that the derailments were caused by poor track conditions combined with highe average speeds.
Mr. Parker pointed out to me this morning in the USA Today, the bottom, left-hand corner, an article says 69 percent of train accidents are derailments.
The Secretary in section 213 was only regulating Congress' perceived cause of these terrible derailments that happen so frequently, poor track conditions combined with higher average speeds.
Unknown Speaker: I guess it's a little unfair to say that lookout is inconsistent with the speed limit.
I mean, you have a speed limit of 30 miles in residential areas, let's say.
Certainly that doesn't mean if you see a pedestrian walking in front of you, you can maintain your 30-mile speed, does it?
Mr. Colston: Well, Your Honor, under their interpretation, they say that they don't.
In fact, in their reply brief... it amazed me... they said we still have the duty to slow down to avoid a collision.
What's the difference between slowing down to avoid a collision, a specific collision--
Unknown Speaker: I hope you slow down in residential areas when you're driving a car--
Mr. Colston: --Yes, Your Honor.
Unknown Speaker: --and it says 30 miles or 25 miles and you see a pedestrian.
You, nonetheless, slow down, don't you?
Mr. Colston: Yes, Your Honor, and--
Unknown Speaker: But you'd say what's the maximum speed.
The maximum speed is 25 or 30 miles an hour.
Mr. Colston: --Right, but--
Unknown Speaker: That's all they're saying here I guess.
Mr. Colston: --That is all they're saying, but what we're doing with the railroad is no more than we're doing with a truck driver on I-75.
If he comes to an area where the lanes narrow down into one because they're doing construction, we require him to slow down, to not kill somebody.
We don't pat him on the back and say that's okay.
Unknown Speaker: Maybe I don't understand the speed issue, but... your answer.
I thought their position was they could go 60 miles an hour.
Mr. Colston: It is, and now they're saying in their reply brief that they have the duty to slow down.
And that's what's inconceivable to me, Your Honor, is I don't see what the difference is in slowing down to avoid a specific collision and slowing down to avoid a collision because you're in a dangerous area.
Unknown Speaker: I suppose it's the difference between when you're on an interstate highway that has a posted speed limit of 55 and there's a major curve.
You are not negligent if it's good weather and everything else is okay and you go 55 miles an hour.
Mr. Colston: --Right.
Unknown Speaker: But you would be negligent if there were, you know, somebody fallen down in the road and you continued at that same speed.
Mr. Colston: Or--
Unknown Speaker: That's all they're saying--
Mr. Colston: --Yes, Your Honor.
Unknown Speaker: --that the normal track conditions allow them to continue to go at whatever that speed is.
Mr. Colston: That's right.
Unknown Speaker: And if they see an obstruction, of course, they have the duty to slow.
Mr. Colston: And if they knew... by that same reasoning, if they knew that there was a little path there because it was a national park and pedestrians, people, frequently and bicyclers frequently went over the tracks there to go into the other part of the national park, would they then not have a duty to know that that hazard is up there and that it's very likely that an accident could occur because the conditions are so bad and not slow down.
It's inconceivable, Your Honor, that the Secretary would pass a regulation like that in the name of safety.
Unknown Speaker: Thank you, Mrs. Colston.
Mr. Trienens, you have 2 minutes remaining.
Rebuttal of Howard J. Trienens
Mr. Trienens: I'd like to devote that entirely to the confusion on Federal funding.
The States, as everybody knows, get a lot of Federal money for all kinds of purposes on the highways, and the States accept certain responsibilities to get all that money.
And one of them is, imposed in the 1973 act, each State shall conduct and maintain a survey of all highways, to identify rail crossings which may require separation or protective devices, and establish and implement a schedule of projects for this purpose.
States have done that.
They haven't objected to it.
They're doing it.
The Federal funds it.
And my point is that quite apart from this myopic view on part 646, that this requirement is now embraced not only in the statute, but also in the Federal regs.
It's in 924.
It's in 1204.
These are regulations and they trigger the preemption.
The manual, which counsel for the Solicitor General said, oh, that's a mere bulletin... it is a regulation.
It's in the CFR, and the R stands for regulation.
It's described in the CFR as a regulation and a standard, and it specifically puts the responsibility for this narrow question of who determines gates or no gates on the States.
And once they do that, 434 kicks in.
Having covered that narrow subject matter, not liability generally at grade crossings... we'll keep getting sued every time there's an accident, but as to this determination, the Secretary has covered that subject matter and that preempts expressly.
Chief Justice Rehnquist: Thank you, Mr. Trienens.
The case is submitted.
Argument of Speaker
Mr. Speaker: We have another opinion to announce which I ommitted will be announced by Justice White.
Argument of Justice White
Mr. White: And As usual it won't take long.
For the reason stated in an opinion filed with the Clerk, the judgment of the Court of Apeals for the Eleventh Circuit is affirmed.
Justice Thomas who is joined by Justice Souter has filed an opinion concurring in part and dissenting in part.
Thank you Mr. Chief Justice.