March 3, 2021 532 PM
ALPINE — Officials and residents in Alpine have long complained that Union Pacific parks trains through the center of town, disrupting traffic and hindering emergency response. Last year, after deciding discussions with the company were going nowhere, the city adopted an ordinance to fine the company if it blocked 5th Street in the center of town for more than 15 minutes.
Union Pacific did pay the city at least $17,000 in fines — but then, in September, the company sued. As a national train business, Union Pacific said Alpine had no business fining it or telling it what to do.
The city pushed back, arguing its ordinance was “narrowly tailored to fix a specific, local problem dealing with local traffic and safety concerns caused by railroad operations at a single crossing.” The lawsuit has dragged on in federal court for months.
Lately, though, the lawsuit hasn’t been going well for Alpine, city manager Erik Zimmer admits. A federal judge has repeatedly ruled against the city, including throwing out motions to dismiss in January.
Meanwhile, Alpine has also dismissed its former city attorney, Rod Ponton, as officials grew frustrated with how Ponton was handling a dispute between city and county law enforcement. Union Pacific also has a new community-relations official, which city officials hope will be more understanding to their traffic concerns.
And so, after just around a year on the books, Alpine is moving to overturn its blocked crossing ordinance and go back to discussions with the company. At a city council meeting on Tuesday, city officials voted to start the process of repealing it.
At the start of Tuesday’s meeting, Sandy Wilson, the new city attorney, gave a pessimistic outlook on the lawsuit. “I did a lot of research,” Wilson said. “[I’ve] come to find out that the federal government preempts anything with any type of city ordinance regarding any kind of blocking of the roadways.” Those legal precedents have been established since 2005, she said.
In 2001, a case in the 5th Circuit Court of Appeals against the Kansas City Southern Railway Company “set the bar” on those issues, she said. That case, federal judges ruled that regulating blocked crossings could affect train operations and therefore were outside the authority of local officials.
Subsequent laws, including updates to the Federal Railroad Safety Act in 2005, “totally took away any power from states to do any type of regulation,” Wilson said. Even though Texas still has a state railroad commission, the commission’s “primary focus is oil and gas” and “they do not deal with railroad issues.” All of which meant, Wilson explained, that Alpine’s ordinance “is not enforceable at all.”
“My request is it needs to be repealed by the city,” Wilson said. “It’s not going to be enforceable.” With the lawsuit from Union Pacific still ongoing, Wilson said she was now trying to find a way to end the lawsuit quickly and amicably.
“My goal is to get absolutely no attorney fees charged,” Wilson said. In lawsuits, costs of lawyers are typically paid for by the losing side — another aspect of the lawsuit that could prove to be a headache for Alpine.
Reached for comment on Tuesday before the council meeting, a spokesperson for Union Pacific said they were continuing to communicate with the city. But the spokesperson stopped short of saying whether Union Pacific would drop its lawsuit if Alpine rescinded its ordinance.
“We remain engaged with the City of Alpine and look forward to hearing the outcome of the upcoming city council vote,” that spokesperson, Elizabeth Graham, said. “Our goal is to collaborate with city leaders to find potential solutions, and rescission of the ordinance will allow us to do that going forward.”
Rescinding the ordinance will work much like passing the ordinance. After a first reading and vote, which passed on Tuesday, the city will then need to have a second vote. That will likely happen at the next meeting on March 17.
It remains to be seen what will happen to Union Pacific’s lawsuit, and much less to train-related traffic issues in Alpine. But like other city officials, Wilson said she had a good feeling about Raquel Contreras, the new community-relations liaison at the company.
“She’s willing to come down here,” Wilson told the council. “We plan on meeting at the railroad tracks.” With the coronavirus pandemic still ongoing, Contreras was still waiting on authorization to travel for work, Wilson said. But when she does arrive, city officials could show her the disruptions that happened when Union Pacific parked its trains across 5th Street. And just maybe, Alpine will “be able to get [the blocked-crossing issues] resolved that way.”