6. Discussion

This is a jurisdiction case. More precisely, this case examines whether, as VTA argues, the Commission is strictly limited in its safety oversight of light rail transit, or, as Staff asserts, the Commission has broad authority that includes light rail crossings of streets and highways. Our analysis looks first to statutes that specifically refer to VTA or to public transit guideways like the one operated by VTA. We turn then to the question of whether the Commission's exclusive state jurisdiction to review and approve rail/street crossings should apply to VTA under §§ 2001, et seq.

6.1 Jurisdiction Under Statutes Specific to VTA

VTA admits, as it must, that it is subject to Commission jurisdiction under § 100168, § 778 and § 99152. We would add, as does Staff, that § 309.7 also specifically addresses the duties of the Commission and its safety division in reviewing public mass transit guideways. VTA acknowledges that, as in § 99152, its operation falls within the meaning of a public mass transit guideway.¹⁰

Sections 100168 and 778 deal primarily with the safety equipment required for light rail transit operations and with the safety appliances and other equipment required for at-grade crossings. Detailed requirements for these operations are set forth in G.O. 143-B (light rail transit) and G.O. 164-B (rail fixed guideways), adopted in their original form pursuant to legislative directive in 1978 and 1991, respectively. While the majority of these regulations relate to safety equipment and operating procedures, G.O. 143-B since 1978 has required that rail/street crossings either at grade or at separated grade be approved in advance by the Commission.¹¹

Section 99152, applicable to all transit districts, addresses safety appliances and procedures, but it also directs the Commission to "inspect all work done" on guideways and to "make further additions or changes necessary for the purpose of safety to employees and the general public." A 1986 amendment to the statute added a requirement that the Commission develop a safety oversight program employing safety planning criteria to be met by operators "in the design, construction, and operation of those guideways."¹² (Emphasis added.)

In contrast to the position taken by VTA,¹³ we have interpreted our safety authority under § 99152 broadly. In an earlier case involving VTA, Brown v. Santa Clara County Transportation Agency (1994) 56 CPUC2d 554, we denied the motion of the City of San Jose to limit our authority under the statute, stating:

For our jurisdiction over safety to be meaningful under § 99152, we must be able to issue orders over the entire public transit guideway system. We cannot agree to compromise, frustrate, and fragment our safety regulation of public transit guideways by allowing any owner or operator of a public transit guideway to avoid our safety orders. Any dispute over facilities and defendants must be resolved such that we have a direct and comprehensive - not indirect or piecemeal - regulatory approach to implement our safety responsibilities in furtherance of the overall public interest. (56 CPUC2d at 559.)

As to placement and construction of grade crossings, VTA contends that § 99152 authorizes the Commission only to perform a post-construction safety review. That view misreads the statute. In the first place, § 99152 states that the Commission "shall" inspect all of the work done on a proposed guideway and to make changes necessary for public safety. If our inspection of the engineering plans for an at-grade crossing determines that the proposed crossing will be unsafe, we are compelled under this statute to order changes in that work.¹⁴

Moreover, § 99152 also requires that the Commission "shall" develop a safety oversight program for a guideway project that an operator must meet before, during and after construction of the guideway system. In arguing that this requirement applies only to a post-construction safety review, VTA ignores the Commission's responsibility to give safety approval to the "design" of a guideway system. Had the Legislature not intended that we exercise our crossings jurisdiction from the beginning, it would not have instructed us to develop an oversight program to be met by VTA in "the design [and] construction" of its guideways. On the facts before us in this case, VTA would have us believe that it was the intention of the Legislature that VTA could on its own construct an at-grade crossing at Hamilton Avenue, with this Commission's authority limited after the fact to ordering VTA to tear down the at-grade facility and reconstruct it as a separated crossing. Familiar principles of statutory construction preclude so absurd an interpretation of the clear words of the statute. (Younger v. Superior Court (1978) 21 Cal.3d 102.)

Finally, the Legislature in § 309.7 has again enunciated the Commission's broad authority to regulate rail systems, including those operated by transit districts. That statute, part of the enabling legislation for organization and function of the Commission, states:

The safety division of the commission shall be responsible for inspection, surveillance, and investigation of the rights-of-way, facilities, equipment, and operations of railroads and public mass transit guideways, and for enforcing state and federal laws, regulations, orders, and directives relating to transportation of persons or commodities, or both, of any nature or description by rail. (Emphasis added.)

In the face of this explicit safety authority of the Commission over rights-of-way, facilities, equipment and operations of public mass transit guideways, we find no merit in VTA's contention that, as a publicly owned transit district, it has sole authority to determine placement and construction of rail/street crossings. Under Art. XII, § 8 of the California Constitution, "[a] city, county, or other public body may not regulate matters over which the Legislature grants regulatory power to the Commission."

As noted by Staff, the definition of a "transit system" is "a public district organized pursuant to state law and designated in the enabling legislation as a transit district or a rapid transit district." (Section 99213; emphasis added.) By definition, therefore, VTA's authority is that designated by the Legislature. There are no statutory provisions that support VTA's contention that it has "paramount" responsibility for construction of light rail transit street crossings, or that it has "plenary authority over the planning, construction and operation of transit facilities." (VTA Brief, at 16-17.) On the contrary, statutory authority for safety oversight of design, construction and operation of transit system guideways is specifically vested in the Commission.

The Legislature reserved to the Commission safety oversight in the enabling legislation for each of the 13 transit districts it has authorized since 1955.¹⁵ That extensive reservation of our safety oversight over transit agency rail operations, combined with the authority granted to us in such statutes as § 99152 and § 309.7, are persuasive evidence that our safety jurisdiction over transit system guideways, including inspection and approval of rail/street crossings, rests on firm statutory ground.

6.2 Exclusive Rail Crossings Jurisdiction

As noted earlier,¹⁶ § 1202 provides that the Commission has the exclusive power to prescribe the manner of each crossing of one railroad by another railroad or street railroad, and of each crossing of a street by a railroad or street railroad. VTA contends that the Commission's exclusive authority over rail/street crossings does not apply to a transit district because it does not operate as a "street railroad."

A street railroad is commonly understood to be a streetcar system that operates at-grade or at separated grade on streets in a manner that does not exclude the public from using the streets, and which carries passengers from one part of a district to another in a city and its suburbs.¹⁷ It is defined at § 231 of the Code as follows:

"Street railroad" includes every railway, and each branch or extension thereof, by whatsoever power operated, being mainly upon, along, above or below any street, avenue, road, highway, bridge, or public place within any city or city and county, together with all real estate, fixtures, and personal property of every kind used in connection therewith, owned, controlled, operated, or managed for public use in the transportation of persons or property, but does not include a railway constituting or used as a part of a commercial or interurban railway.

Staff asserts that, at the time § 1202 was enacted in 1911, street railroads were operated by private street railroad corporations. Following the Second World War, most street railroad corporations became municipally owned and operated. Beginning in the 1950s, the California Legislature created transit districts to operate local transit systems, including street railroads.

Section 1202 does not cease to apply because a street railroad is operated by a transit agency over which the Commission has safety jurisdiction. Applying the statutory definition of the term, VTA clearly operates a "street railroad." The VTA light rail transit system is a "railway" powered by electric overhead catenary lines "operated mainly upon, along, above or below" streets and "operated, or managed for public use in the transportation of persons or property." Put simply, § 1202 applies to street railroads; VTA operates street railroads; the Commission has safety jurisdiction over VTA; hence, § 1202 applies to VTA. As California courts have maintained, "If it looks like a duck, if it walks like a duck and if it quacks like a duck, it should be treated as a duck."¹⁸

While acknowledging that its operations resemble those of a street railroad, VTA argues that it is not subject to §§ 1201 or 1202 because those statutes are intended to apply only to the rail/street crossings of privately owned railroads and privately owned street railroad corporations, not those of public entities like a transit district. It cites the cases of People ex rel. Pub. Util. Com. v. City of Fresno, supra, and County of Inyo, supra, as standing for the proposition that the Commission cannot regulate transit district rail crossings without express legislation granting it the jurisdiction to do so.

City of Fresno and County of Inyo are distinguishable from the case before us here. Neither is a transportation case. City of Fresno dealt with a city's power of eminent domain, over which the Commission was deemed to have no jurisdiction. County of Inyo concluded that the Commission had no jurisdiction to review rates of a municipal water company. In the case before us, however, we are considering the Commission's jurisdiction over rail/street crossings, jurisdiction which flows from authority granted to the Commission in transportation matters by the State Constitution.

In considering §§ 1201 and 1202, it is important to note that the Commission, unlike other state agencies, derives much of its jurisdiction by direct grant from the Constitution itself. The Legislature is without power to modify, curtail, or abridge this constitutional grant of power.¹⁹ As pertinent here, that constitutional authority includes jurisdiction over railroads "and other transportation companies." In People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, the California Supreme Court reasoned that (prior to federal preemption) airline carriers, motor trucks and automobile stages were subject to Commission jurisdiction as "other transportation companies." The Court stated:

The argument of the defendant that the specific references in Article XII to "railroads and other transportation companies" must for certainty limit the "other transportation companies" mentioned to ground carriers, is without merit. Airline carriers, like motor trucks and automobile stages, are forms of transportation unknown at the time the Constitution was adopted, and whether or not the Legislature has since that time acted with reference to them, they are within the regulatory powers of the commission...." (42 Cal.2d at 641.)

The Commission's original jurisdiction under former section 23 of the Constitution applied to "all persons engaged in the business of transportation, whether as corporations, joint-stock companies, partnerships, or individuals,"²⁰ and that original grant of jurisdiction is preserved by the savings clause of today's Article XII, section 9. Staff contends and we agree that if airline carriers, unknown at the time of the Constitution's grant of jurisdiction to the Commission over transportation companies, have been held to fall within that original grant of Constitutional authority, then the streetcars of a transit agency (a kind of transportation entity also unknown at the time of passage of the State Constitution) must likewise fall within the Commission's original grant of Constitutional power.

Moreover, VTA's contention that the Commission lacks authority to review rail/street crossings of a public entity like a transit district is refuted by the Supreme Court's decision in City of San Mateo v. Railroad Commission of California (1937) 9 Cal.2d 1. In City of San Mateo, as here, the issue was whether the Commission may direct government agencies to comply with Commission orders regarding the closure or separation of at-grade crossings. The cities of San Mateo, Redwood City and San Carlos sought review of the Commission's order requiring closure or separation of grades at crossings in each of the three cities, arguing that the cities had primary jurisdiction over such crossings within their city limits. Concluding that elimination of unnecessary grade crossings was in the public interest, and that physical closing of crossings is germane to the Commission's regulation of rail safety matters, the Supreme Court held:

In these days of heavy automobile traffic the hazards to life and limb by reason of the numerous railroad crossings at grade is a matter of great public concern. To eliminate unnecessary grade crossings and to minimize the hazards created thereby has become a definite governmental state policy. To effectuate the desired results it is necessary that some public authority be vested with power to compel compliance with regulatory orders. The Constitution and statutes have vested that power in the Railroad Commission. (9 Cal.2d at 9-10.)

Since a plain reading of § 1202 makes it clear that the Commission has exclusive jurisdiction over street crossings by street railroads like those operated by VTA, the Commission is required to review and approve the proposed Hamilton Avenue crossing before that crossing can be constructed. That jurisdictional imperative, both as to § 1201 and § 1202, derives from the Constitution and has been broadly interpreted to apply in the case of public agencies. We conclude that VTA is subject to the rail crossing authority of this Commission.

6.3 Commission Decisions

We take official notice that this Commission has consistently asserted jurisdiction over the placement and construction of light rail crossings of streets and highways, most recently in Los Angeles to Pasadena Metro Blue Line Construction Authority, Decision (D.) 02-05-047 (May 16, 2002). There, the Commission considered 14 consolidated public agency applications for approval of light rail street crossings. The project consisted of 28 at-grade street crossings and 41 grade-separated crossings in the Pasadena-Los Angeles area.

In Blue Line, applicants sought authority to construct the crossings pursuant to §§ 1201-1205. The Commission's jurisdiction over such crossings was not challenged. Nevertheless, the Commission was asked to note the differences between light rail and heavy rail in determining whether grade-separated crossings are "practicable" within the meaning of § 1202. The Commission commented:

Blue Line argues that a "one-size-fits-all" approach to practicability does not make sense. It urges us to consider the differences between light and heavy rail. In considering this approach we first look to Public Utilities Section 1202(c) and Rules 38(d) and 40 [of the Rules of Practice and Procedure]. None of these distinguish between heavy or light rail operations over a crossing. None require that there be a heavy rail operation over the proposed light rail crossing before practicability is to be considered. Certainly the safety of the proposed crossing is influenced by the characteristics of heavy versus light rail, as noted by [the] Commission's approval for separate general orders for each type system, [with] General Order (GO) 143 specifically for light rail operations. (D.02-05-047, at 9.)

To the extent that the Commission's decision asserts the same jurisdiction over light rail crossings as it does in heavy rail crossings, VTA contends that Blue Line was wrongly decided. It distinguishes the cases relied upon in that decision as applying to railroad corporations, not to light rail systems.

VTA believes that the Commission correctly decided the jurisdictional question in a 1990-91 decision²¹ dealing in part with whether light rail crossings were eligible for funding in the same manner as railroad crossings under Streets and Highways Code §§ 2450, et seq. Commission staff took the position in that case that exclusive light rail crossings did not qualify for grade separation funding under the Streets and Highways Code because the code referred only to grade separations of "railroads" and "railroad tracks." Staff argued that the term "light rail" has a meaning separate and apart from the term "railroad." The Commission agreed with staff's position, stating:

Opponents argue that the tracks of an LRT are included in the term "railroad" and one respondent, San Diego, contents that it qualifies to be a railroad corporation. We think not. The term "railroad" used in § 2450 does not under its general and plain meaning include LRT systems. Nor is an LRT system generally defined as a railroad corporation. A railroad corporation is a private entity providing transportation services for profit to the public and is regulated by this Commission. LRT systems participating in these proceedings are publicly owned transportation systems which govern themselves but are subject to CPUC safety oversight under the Public Utilities Code. Thus, LRT systems cannot be interpreted as being included in the terms "railroad" or "railroad corporation." (D.90-06-058 at 22-25; citation omitted.)

VTA errs in its interpretation of the crossings upgrade decision. The Commission's decision in that case was not that light rail crossings are excluded from Commission jurisdiction, but rather that transit agencies were not entitled to Grade Separation Program funds under Streets and Highways Code § 2450, et seq., because they were provided with alternative means of funding. Staff in that case argued and the Commission agreed that:

...it is incongruous to allow LRT to receive funds under the Grade Separation Program when other funds for LRT grade separations are provided under other public transit programs, such as the Transportation Planning and Development Account [§§ 99310, et seq.] (D.90-06-058, at 25.)

The manner in which grade separation projects are funded is irrelevant to the issue of whether the Commission has safety jurisdiction over street crossings of light rail tracks. As the Commission noted in D.90-06-058, light rail train systems "are publicly owned transportation systems which govern themselves but are subject to CPUC safety oversight under the Public Utilities Code." (Supra; emphasis added.)

No crossings or intersections of tracks of an LRT system and a public road, highway, street, or track of a railroad corporation either at-grade or at separated grade shall be constructed without having first filed an application and pursuant to the Public Utilities Commission Rules of Practice and Procedure, California Administrative Code, Title 20, and secured the permission of the Commission.

The Commission shall develop an oversight program employing safety planning criteria, guidelines, safety standards, and safety procedures to be met by operators in the design, construction, and operation of those guideways.