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BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY v. DEPARTMENT OF TRANSPORTATION

115831; A133519.

206 P.3d 261 (2009)

227 Or. App. 468

BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent.

Court of Appeals of Oregon.

Decided April 15, 2009.

Attorney(s) appearing for the Case

Kathryn M. Pratt, Portland, argued the cause for petitioner. On the briefs were James L. Hiller and Hitt Hiller Monfils Williams LLP.

Erin C. Lagesen, Salem, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.

ROSENBLUM, J.

Petitioner Burlington Northern & Santa Fe Railroad Co. (BNSF) seeks judicial review of an order of the Oregon Department of Transportation (ODOT) imposing civil penalties for violations of OAR 741-125-0010, which generally prohibits trains from blocking railroad-highway grade crossings for more than 10 minutes. BNSF argues that ODOT's order is invalid because, among other reasons, OAR 741-125-0010 is preempted by 49 USC section 10501(b), the preemption...

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