MD Mall Associates, LLC v. CSX Transportation, Inc.

I dissent from the majority’s opinion because I believe its analysis veers from Supreme Court precedent in the area of FRSA preemption. When the Mall commenced this action in District Court complaining of CSX’s failure to maintain its stormwater drainage, it urged that, applying the “coverage” test for preemption that the Supreme Court established in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), its claims were clearly covered by 49 C.F.R. § 213.33. Section 213.33 provides:

Each drainage or other water carrying facility under or immediately…