Discussion

1. Overview

To resolve this complaint, we must determine the legal status of the crossing. We must also determine whether circumstances require that the crossing remain open. Finally, if the crossing is to remain open, we must determine whether safety issues necessitate improvements and who should bear the costs to improve and maintain the crossing.

Existing circumstances warrant extending injunctive relief for 120 days to permit the parties sufficient time to consider a permanent solution consistent with this decision. We decline to order BNSF to leave the crossing open and unrestricted permanently. Although (as we will explain later) the crossing has been treated as private and is publicly used, we decline to order that this crossing remain open to permit access for complainants and the general public, because there are alternate routes available to them. In addition, complainants are not adjoining landowners who can establish a private crossing for their benefit.

We affirm the assigned Commissioner's and ALJ's issuance of the TRO, which required BNSF to remove all barricades, gates, fences and padlocks it erected across the Summit Truck Trail crossing and to refrain from erecting any other obstruction until further order of the Commission. We further affirm the assigned ALJ's ruling on BNSF's motion to dismiss.

2. Legal Status of the Crossing

We must first determine the legal status of the Summit Truck Trail crossing. Whether a crossing is private, public, or publicly used is primarily a factual issue. Pub. Util. Code §§ 1201, 1202, 1202.3, and 7537 address public and private crossings and the Commission's authority to grant or close such crossings. Private crossings generally permit property owners whose land adjoins the railroad right of way to have access to that land. Public crossings generally traverse public roads, highways, and streets. However, both private and public crossings can traverse publicly used roads. Legal standards governing private landowners' access to private crossings, such as they exist, pertain to adjoining landowners. Access problems also can arise under circumstances, such as those presented here, where landowners are not adjacent to the railroad tracks and crossing, but access problems do not, by themselves, create a legal entitlement to a crossing.

If a crossing is private, the Commission can determine whether keeping it open is necessary and whether safety measures are sufficient. If a crossing is public, the Commission similarly can determine whether it should be altered, relocated or closed.

a. Private Crossing

Pub.Util. Code § 7537 provides in relevant part:

The owner of any lands along or through which any railroad is constructed or maintained, may have such farm or private crossings over the railroad and railroad right of way as are reasonably necessary or convenient for ingress to or egress from such lands, or in order to connect such lands with other adjacent lands of the owner . . .

BNSF asserts that the Commission cannot find the Summit Truck Trail a private crossing under § 7537, because § 7537 only applies to adjoining landowners and complainants' property is not adjacent to BNSF's right-of-way. There is a distinction between whether a crossing is private and whether a property owner has a right to assert the need for a private crossing. The record points to the Summit Truck Trail as having been treated as a private crossing but further demonstrates that complainants are not entitled to establish a private crossing under § 7537. Signage near the crossing states the crossing is private. BNSF relocated its tracks and the crossing when it purchased the property across the Summit Truck Trail and did not seek Commission approval to move the crossing. BNSF thereby treated the Summit Truck Trail as a private crossing, but complainants are not owners of lands adjacent to that crossing. Private property does adjoin the BNSF right-of-way, but complainants do not own that property. Thus, complainants lack standing under § 7537 to request that the Commission formally adjudicate the crossing as private for purposes of their "ingress to or egress from" lands through which the "railroad is constructed or maintained."

Complainants assert they have an easement, but BNSF states it has never granted one. There is no order that grants complainants the easement they assert. There is a judgment in civil court that the Summit Truck Trail is a public road but that judgment applied to a different section of the Summit Truck Trail, and the proceeding did not include BNSF. (Oak Hills Property Owners Association, Inc. v. Gary T. Sanderson, California Court of Appeal, Fourth District, Division Two, E015845 (filed January 24, 1997: unpublished opinion).)¹ We have found that easements by prescription to a public railroad right of way cannot occur. (See In the Matter of the Application of David O. Daily, et al., (1981) D.93087, 6 CPUC 2d 184, 189.) The prior judgment is insufficient to permit complainants continued use of the Summit Truck Trail crossing.

b. Public Crossing

The Commission has exclusive power to:

Determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use, and protection of each crossing of one railroad by another railroad or street railroad, and of a street railroad by a railroad, and of each crossing of a public or publicly used road or highway by a railroad or street railroad, and of a street by a railroad or of a railroad by a street. (Pub. Util. Code § 1202(a).)

Although the BNSF tracks cross the Summit Truck Trail, a publicly used road, Commission records do not treat the crossing as public. The fact that the Summit Truck Trail is not in the County-maintained road system prevents a finding that the crossing is public. Because there is no dedication and no judicial determination of implied dedication, we cannot find the crossing public on the record before us. (See Southern Pacific Transportation Co. v. Public Utilities Commission, (1976) 18 Cal. 3d 308, 314, 134 Cal. Rptr. 189.) Pub. Util. Code § 1202.3 requires:

Notwithstanding any other provision of this chapter, in any proceeding under Section 1202, in the case of a crossing involving a publicly used road or highway not on a publicly maintained road system, the commission may apportion expense for improvements to the county in the case of unincorporated territory, city or other political subdivision if the commission finds (a) that the owner or owners of private property served by such publicly used crossing agree to expressly dedicate and improve, and the affected public agency agrees to accept, a right-of-way or roadway over such property for a reasonable distance from such crossing as determined by the commission, or (b) that a judicial determination of implied dedication of such road or highway over the railroad right-of-way to public use, based on public user in the manner and for the time required by law, has taken place.




If neither of these conditions is found to exist, the commission shall order the crossing abolished by physical closing.

Although there is no pending application at the Commission for a public crossing at the Summit Truck Trail, there is no legal barrier to filing such an application, as long as the constraints presented by § 1202.3 are resolved. In 1974, the California Department of Transportation applied to the Commission for a public crossing at the Summit Truck Trail as part of a road improvement project but withdrew that application when the project did not proceed.

3. Necessity for Keeping the Crossing Open

We next must consider whether it is necessary to keep open the Summit Truck Trail crossing by evaluating the need for such crossing under Pub. Util. Code §§ 7537 and 1202(b).

a. Necessity for a Private Crossing

The Commission has exclusive authority to alter, relocate, or abolish a public crossing. (Pub. Util. Code § 1202(b).) Where, as here, there is a dispute among the parties, we can adjudicate the need for a private crossing. (Pub. Util. Code § 7537; see 6 CPUC 2d at 190.) A licensing agreement generally is required. (Id. at 188-189.) However, adjacent property owners are not parties to this proceeding, and there is no evidence to indicate they would be amenable to negotiating a licensing agreement. Ordering the parties to negotiate a licensing agreement would not resolve the parties' dispute over the need for the crossing, because the Oak Hills properties are not adjacent to the crossing and there are other property owners and an additional crossing (belonging to Union Pacific Railroad) before the Summit Truck Trail reaches complainants' properties. Thus, formally determining that the crossing should remain open as a private crossing is neither reasonable nor in the public interest.

Residents and the general public used the Summit Truck Trail for decades without restriction. Emergency response vehicles also regularly use the crossing. However, existing circumstances, as reflected in the record, do not sustain a finding of necessity for the Summit Truck Trail crossing to remain open as a private crossing publicly used. We distinguish an earlier decision in which we kept open a "publicly" used private crossing, and required the railroad to pay for improvements, in order to permit access to a parking lot for a number of businesses. (Re Southern Pacific Transportation Co., (1970) D.77892, 71 CPUC 490.) In the Southern Pacific proceeding, the crossing was directly between a paved parking lot and businesses and a paved road. Here, however, complainants are not adjacent landowners, and the Summit Truck Trail is an unimproved road that is approximately a mile away from the Oak Hills residences.

b. Necessity for a Public Crossing

Use of the Summit Truck Trail and crossing for emergency response, a public use, is the most compelling reason for the crossing to remain open. Although Station 48 is designated the backup unit for emergency response to the Oak Hills community, it annually responds almost twice as frequently as the primary response unit. Station 48 has no alternate access route that permits such timely response. On balance, the one fatality at the crossing in the 30 years at its present location and other safety concerns do not preclude use of the crossing for emergency response access to the community, so long as the safety concerns are appropriately addressed.

Sections 1201 and 1202 give the Commission exclusive authority to grant a public crossing and to determine the manner by which it operates. Due to the need for emergency response access, the Commission could grant an application under Pub. Util. Code §§ 1201 and 1202 and Rules 38 and 39 of the Commission's Rules of Practice and Procedure to convert the Summit Truck Trail private crossing to a public crossing, provided that the application meets requirements for safety improvements and maintaining the road.

Although there is no current application for a public crossing at the Summit Truck Trail, County Supervisor Postmus has stated:

We will do everything in our power to keep the crossing open so that we can have the fastest possible response to all our emergency personnel; and if that means filing for [a public crossing], then we'll do it.

The County's stated desire to continue emergency response access through the Summit Truck Trail crossing permits us to find that the County could potentially be authorized to convert the existing private crossing to a public crossing. We next address the requisite safety improvements and road maintenance arrangements.

4. Need for Safety Improvements

Our staff has noted safety concerns at the Summit Truck Trail crossing and has recommended closure. In addition, there has been a fatality at the crossing. In recommending closure, staff notes it favors eliminating railroad grade crossings where possible and upgrading present grade crossing warning devices. According to staff, the Association of American Railroads, the California Department of Transportation, and the United States Department of Transportation-Federal Highway Administration also favor crossing elimination or upgrades.

We would require safety improvements at the crossing, if approved as a public crossing, and apportion the cost of those improvements and maintenance expenses between the County and BNSF. The Commission supports the elimination of unsafe grade crossings. (See Application of the City Oceanside for an Order Authorizing Construction of a Private Crossing, D.01-11-016, 2001 Cal. PUC LEXIS 1052 *7.) Where circumstances warrant keeping open a crossing, we can order safety upgrades consistent with our general orders. To address staff's safety concerns, should the crossing remain open as a public crossing, we would require two standard number 9 automatic gate-type warning devices under General Order 75-C.

Because the Summit Truck Trail is not a publicly maintained road system, we cannot find the crossing a public crossing and order safety improvements without addressing whether there is dedication. Instead, we can consider an application to convert the private crossing to a public crossing at the Summit Truck Trail if the County incorporates the portion of the Summit Truck Trail below Decker into the County-maintained road system, thereby eliminating the need for dedication. Because the County must maintain that portion of the Summit Truck Trail for the benefit of emergency response to Oak Hills residents, those residents should bear the cost of necessary improvements.

The County should have the opportunity to determine whether it is feasible to incorporate the Summit Truck Trail into the County-maintained road system and, if so, to file an application to convert the private crossing at the Summit Truck Trail to a public crossing. The application must be filed within 90 days of the effective date of this order. The application must show the County is prepared to meet appropriate conditions regarding safety improvements and maintaining the road. If the County does not file such an application, we order BNSF to close the crossing 120 days after the effective date of this order, after giving the County Fire Department 30-day's notice and posting notice of the date of closure on the private crossing signs 30 days in advance of closure. If the crossing is closed, we further order BNSF to place a security guard at the crossing who will open the barricade when paged to permit emergency response to proceed as quickly as if there were no barricade. This requirement will continue until further order of the Commission.

5. BNSF's November 2000 Closure of the Crossing

BNSF failed to provide notice to the public and to the Fire Department in advance of closing the crossing. Consistent with the need for notice discussed in Selby v. Union Pacific Railroad, D.00-02-035, 2000 CPUC LEXIS 49, BNSF should have posted a notice of the pending closure on the private crossing sign near the crossing at the Summit Truck Trail and should have listed a number where residents could have called to obtain information about the pending closure. BNSF also should have notified the Fire Department in advance of closing the crossing to ensure that emergency response access was not interrupted. Although BNSF did consult Commission staff and the County, the County did not know how frequently residents north of the tracks used the crossing. BNSF knew that the crossing was used by the public and could have determined how frequently residents and emergency response vehicles used it. As discussed above, we will require BNSF to provide notice in advance of closing this crossing.