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Train case will have its day in court

By Greg Bird
birdman@tmcvoice.com

“They are wrong on all counts and AAR will get its day in court.”
With those words United States District Judge Gregory F. Van Tatenhove all but assured a request for an injunction against Sheriffs and County Attorneys in McCreary and Pulaski Counties will go to trial in Federal Court.
Last week Judge Van Tatenhove issued an order denying a motion to dismiss the lawsuit filed on behalf of the defendants: McCreary County Sheriff Randy Waters, former County Attorney Conley Chaney, and their Pulaski County counterparts Greg Speck and Martin Hatfield.
Last May, in the wake of numerous citations issued to Norfolk Southern trains blocking public roadways in both McCreary County and Pulaski County, the Association of American Railroads filed a lawsuit in Federal Court in London, asking the Court to override the citations, claiming the Kentucky laws violate interstate commerce laws.
The lawsuit named the Sheriffs and County Attorneys for both counties, as well as Kentucky Attorney General Andy Beshear as defendants. Beshear later reached an agreement with AAR to remove him from the lawsuit, even though he is the chief law-enforcement officer for the state.
Attorneys for the Defendants filed a motion asking for a dismissal of the case: asserting several points contending AAR did not have the ability to sue on behalf of the railroad company. The request for dismissal also argued the case had no merit to move forward since the legal issues in question are still being adjudicated in District courts.
Last week the Judge ruled against the motion to dismiss, citing several rules of law disputing the defendant’s claims.
In his opinion Judge Van Tatenhove acknowledges the safety concerns of road blockages by trains, but contends the lobbying group representing Norfolk Southern has the right to try and block further local legal action.
“Kentuckians are upset,” the Judge opined. “They believe that delays caused by trains idling in railroad crossings are putting their lives at risk. So, local law enforcement officials have been tasked with cracking down on the amount of time trains remain in a railroad crossing by enforcing KRS 277.200 and 525.140. The only subject of those enforcement efforts – Norfolk Southern – has challenged the constitutionality of its conviction during the state court proceedings.”
“Now, in the wake of those convictions, the largest railroad advocacy group, the Association of American Railroads, has turned to this Court to enjoin further prosecutions for rail crossing violations.”
(Norfolk Southern did agree to pay fines in Pulaski County for violating the statute, but immediately challenged the law.)
The ruling states AAR has the legal standing to sue since it is attempting to enforce the Supremacy Clause of the Constitution, and as a representative of Norfolk Southern in an official capacity – is has the legal right to protect one of its members.
Judge Van Tatenhove also stated the state course case, currently ongoing in District Court, has no bearing on the lawsuit as financial damages to the railroad can still be incurred until it is resolved.
“The Defendants have already enforced the rail crossing statutes and have not disputed that they will continue to do so…Any delay would work an unfair hardship on AAR,” the ruling stated.
The ruling also references other legal points to refute the Defendants’ legal challenge – further verifying the AAR’s right to proceed with the lawsuit.
On Monday the defendants filed a motion asking the Judge to reconsider his ruling, citing a 2018 decision from the Sixth Circuit Court supporting the argument that AAR does not have sufficient standing to file the lawsuit on behalf of Norfolk Southern.

As of press time there has been no response to the latest filing by AAR, and no additional Court dates have been set.
The local case involving Norfolk Southern has been delayed again, with a status hearing scheduled for August. A court date of July has been set in Pulaski County District Court for a review of the case there.

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