Klamath County v. Department of Transportation
Klamath County v. Department of Transportation
Opinion of the Court
Petitioner Klamath County seeks judicial review of an administrative order of the Oregon Department of Transportation (ODOT) that ordered the closure of a railroad grade crossing
Several statutes relate to ODOT’s authority over railroad grade crossings. ORS 824.202 establishes the state’s policy in that regard:
“It is the policy of this state to achieve uniform and coordinated regulation of railroad-highway crossings and to eliminate crossings at grade wherever possible. To these ends, authority to control and regulate the construction, alteration, and protection of railroad-highway crossings is vested exclusively in the state, and in the Department of Transportation as provided in ORS 824.200 to 824.256.”
ORS 824.206(l)(b) implements that policy by authorizing ODOT to “[a]Iter or abolish any grade crossing” if that action “is required by the public safety, necessity, convenience and general welfare.” The statute also authorizes ODOT to require “a separation of grades at any such crossing.”
The route of Midland Highway follows several different streets and roads before and after the crossing in issue. It runs south from the central area of Klamath Falls on Washburn Way until Washburn Way reaches LaVerne Avenue. The highway then turns west and follows LaVerne Avenue for about eight tenths of a mile. The grade crossing at issue is on LaVerne Avenue. West of the LaVerne Avenue crossing, the highway turns south on Tingley Lane. Shortly afterwards, Tingley Lane intersects with State Highway 140 at the South Side Bypass. The closing of the crossing will require motorists who wish to access the area west of the crossing to connect with State Highway 140 and then proceed to the South Side Bypass and then north on Tingley Lane and then east on LaVerne Avenue. That route is about 1.6 miles farther than using the crossing in issue. The additional travel time to use the route caused by the closure of the crossing is between one and one-half and two and one-half to five minutes, assuming that the crossing is not blocked by a train; if it is, the agency found that the longer route is likely to be faster.
For a number of years, BNSF, at the recommendation of the Federal Railway Administration, has had a program of closing grade crossings; it currently closes between 400 and 700 private and public grade crossings a year. Since it began the program in 1995, train collisions at grade crossings have decreased from 5.4 collisions per million train miles to 2.89 collisions per million train miles. Closing a grade crossing eliminates the risk of collisions with vehicles, bicycles, and pedestrians. A grade crossing, like the one at issue, that does not cross the road at a 90-degree angle, is especially dangerous because of limited sight distances and poor angles. A nearby hill and the yard office also affect the ability of approaching motorists to see activity on the tracks near the crossing in this case. There were six train-vehicle accidents at the LaVerne Avenue crossing between 1970 and 1996.
BNSF has significantly increased its rail traffic through Klamath Falls since 2002, resulting in longer trains and greater delays at grade crossings. Activity in the yard and arriving and departing trains frequently activate the protection at the LaVerne Avenue grade crossing. Records from one week in February 2003 and one week in March 2003 show that those movements activated the gates between 38 and 77 times during a 24-hour period, and that the total time
If the grade crossing is closed, ODOT wdl install culde-sacs on the highway on each side of the crossing.
Based on those facts, ODOT concluded that closing the LaVerne Avenue crossing satisfied ORS 824.206(l)(b). It reasoned that the reduced risk of collisions, both at the crossing itself and at the intersection of Tingley Lane and the Bypass, showed that public safety required the closure. In addition, the existence of an alternative route that did not require crossing the tracks at grade, together with the delays involved from the frequent closures at the LaVerne Avenue grade crossing and the benefits to the businesses west of the
The county first assigns error to ODOT’s conclusion that it had the authority to close the grade crossing without the county’s approval. The county relies on ORS 366.290(3), which provides:
“With the written consent of the county in which a particular highway or part thereof is located, the department may, when in its opinion the interests of the state will be best served, eliminate from the state highway system any road or highway or part thereof. Thereafter the road or highway or part thereof eliminated shall become a county road or highway, and the construction, repair, maintenance or improvement, and jurisdiction over such highway shall be exclusively under the county in which such highway or road is located.”
The premise of the county’s argument is that the Midland Highway is a state highway and that the closing of the crossing will eliminate the part of the highway that is within the crossing from the state highway system. Under OAR 741-120-0050(2) and (4), ODOT will remove the road surface within the crossing, and BNSF will remove the crossing protection, once the crossing is closed. According to the county, that result, without the county’s approval, rims afoul of ORS 366.290(3). The county also relies on Cabell et al. v. Cottage Grove et al., 170 Or 256, 130 P2d 1013 (1943), in which the Supreme Court held that ODOT’s predecessor did not have the authority, as part of maintaining a state highway that ran through the city, to shut off access to the highway from intersecting city streets.
When required to interpret a statute, our task is to ascertain the legislature’s intent underlying the statute. That analysis begins with a consideration of the text and context of the statute. Unless defined by the statute itself or some other statute, the words in a statute are given their ordinary meaning. By its terms, ORS 366.290(3) applies only when ODOT “eliminates” a state highway from the highway
“Thereafter the road or highway or part thereof eliminated shall become a county road or highway, and the construction, repair, maintenance or improvement, and jurisdiction over such highway shall be exclusively under the county in which such highway or road is located.”
(Emphasis added.) The purpose of the statutory requirement for a county’s written consent, as is obvious from its text, is to prevent the state from foisting the responsibility for maintaining a road onto a county over the county’s objection. That consent requirement simply has no application where a road has been closed and does not “become a county road or highway.”
In this case, the closing of the LaVeme Avenue crossing will not turn the portion of the highway that formerly passed over the tracks into a county road; rather, that portion will no longer be passable by nonrail vehicles of any sort. The road on each side of the crossing will remain a state highway, even if the two portions are no longer parts of a through route. We conclude that ORS 366.290(3) does not apply to the circumstances of this case, because the portion of highway within the crossing will not be eliminated from the state highway system in a way that causes it to be become a county road for which the county is responsible. In addition, ODOT does not propose to close any streets that are not state highways, which was the issue in Cabell. That case, therefore, is also inapposite. Because ORS 366.290(3) does not
The county’s second assignment of error is that there is not substantial evidence to support ODOT’s decision to close the grade crossing. The county points to evidence in the record that, it believes, should have led ODOT to reach a different conclusion. Our review under ORS 183.482(8)(c), however, is for whether there is substantial evidence to support ODOT’s findings; we do not review those findings de novo. See Garcia v. Boise Cascade Corp., 309 Or 292, 787 P2d 884 (1990). None of the evidence that the county discusses challenges the findings that ODOT made.
Relying on the language of ORS 824.206(l)(b), the county also appears to argue that ODOT’s findings are legally insufficient because they do not show that the closing of the grade crossing is absolutely required. The dictionary provides several possible definitions for “require.” The two definitions that are most relevant to this issue are “to call for as suitable or appropriate in a particular case” and “to demand as necessary or essential.” Webster’s at 1929. The first definition is the one that ODOT appears to have relied on in its order; the second is the one that the county appears to rely on in its argument. A consideration of the context in which the statute uses the word “required” shows that ODOT correctly concluded that the legislature intended the first definition, not the second, when it authorized ODOT to close railroad crossings.
ORS 824.206(l)(b) provides that ODOT “may,” if “such action is required by the public safety, necessity, convenience and general welfare,” “[a]Iter or abolish any grade crossing or change the location thereof, or require a separation of grades at any such crossing.” Providing that ODOT “may” take certain action if that action “is required” is an
In ORS 824.202, the legislature established a public policy in favor of eliminating railroad grade crossings wherever possible. Under that statement of policy, ODOT is to use the criteria in ORS 824.206(1) to determine when it is possible to eliminate a crossing — or, at least, to make it safer — by one of the methods that the legislature described. To hold that ODOT must find that closure is absolutely essential before it can act is inconsistent with the legislature’s express purpose and is neither suggested nor required by the words that it used. We conclude that, when the legislature instructed ODOT to find that the criteria “require” it to take some action, it meant that ODOT must find that those criteria make the action “suitable or appropriate” under the circumstances of the particular case.
Given this understanding of the statute’s language, it is clear that there is substantial evidence to support ODOT’s conclusion that the closing of the LaVerne Avenue grade crossing is required within the meaning of ORS 824.206(l)(b). The evidence of frequent and increasing interference with vehicular traffic from trains and switching
Affirmed.
A grade crossing is a place where a railroad track and a road or highway cross each other on the same plane.
The scope of our review is limited by the authority given to us by the legislature. ORS 183.482(8). Under that grant of authority, we do not review the merits of ODOT’s decision; rather, we decide whether ODOT interpreted the applicable statutes correctly and whether the agency’s order is supported by substantial evidence in the record made at the hearing before the agency.
Subsequent to ODOT’s order, BNSF changed its official name to BNSF Railway.
BNSF will pay for the cost of the cul-de-sacs.
The county’s formal resolution in opposition to the closure and the petition from county residents to the same effect are evidence for ODOT to consider in determining whether the closure will satisfy the statutory standards. Contrary to the county’s apparent suggestion, they are not binding on ODOT. ODOT did consider the resolution and the petition and explained the weight that it gave to them as part of its overall consideration of the issues under the applicable statutes.
ORS 824.206(l)(a), (c), and (d) provide additional options. We note that, when the legislature authorized ODOT to “require” a separation of grades, it used the term in a third sense, “to impose a compulsion or command upon (as a person) to do something!.]” Webster’s at 1929.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.