Union Pacific Railroad v. State ex rel. Corporation Commission

2001 OK CIV APP 56, 23 P.3d 954, 72 O.B.A.J. 1565, 2000 Okla. Civ. App. LEXIS 143, 2001 WL 531099
CourtCourt of Civil Appeals of Oklahoma
DecidedJuly 5, 2000
DocketNo. 92,845
StatusPublished
Cited by3 cases

This text of 2001 OK CIV APP 56 (Union Pacific Railroad v. State ex rel. Corporation Commission) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Union Pacific Railroad v. State ex rel. Corporation Commission, 2001 OK CIV APP 56, 23 P.3d 954, 72 O.B.A.J. 1565, 2000 Okla. Civ. App. LEXIS 143, 2001 WL 531099 (Okla. Ct. App. 2000).

Opinion

COLBERT, J.

{1 Union Pacific Railroad Company appeals an order of the Oklahoma Corporation Commission, en bane, ordering it to remove all weeds, trash, and debris located in railroad rights-of-way in Oklahoma City, The primary issue on appeal is whether the Corporation Commission had subject matter jurisdiction in this matter. We find it did and affirm its order.

BACKGROUND

1 2 In September 1998, the manager of the Railroad Department of the Corporation Commission's Transportation Division applied for an order directing Union Pacific to remove weeds and debris from railway rights-of-way near 10th and Tulsa street in Oklahoma City. This application was made because the Corporation Commission had received numerous complaints about the weeds and trash. Union Pacific moved to dismiss the matter, alleging that: 1) the Corporation Commission lacked subject matter jurisdiction; 2) the weeds, debris, and vegetation did not impede the safety of the traveling public; and 3) the problem had been previously abated and no current threat existed to public health, safety, or welfare.

[3 An administrative law judge (ALJ) held a hearing in October 1998, at which the parties presented evidence on the hazards of the weeds and debris. The ALJ found that the evidence supported the Commission's application because the weeds and debris constituted a public health hazard. The ALJ determined that Union Pacific had not complied with Rule 165:32-1-11(a) of the Commission's rules governing railroads, which charges railroads with the duty to reasonably abate "all rank weeds, noxious plants, thickets and trash ... along their rights-of-way." Okla. Admin. Code § 165.32-1-l1(a) (Supp.1998). The ALJ recommended that the Commission issue its order requiring Union Pacific to reasonably abate the weeds and trash along the rights-of-way.

T4 Union Pacific appealed the ALJ's report to the Corporation Commission, en bane, again asserting that the Commission lacked subject matter jurisdiction because exclusive jurisdiction lay with Oklahoma City. Union Pacific further asserted that, if the Corporation Commission had subject matter jurisdiction, the jurisdiction was preempted by federal law. Finally, Union Pacific asserted the ALJ's report was unen-foreeable because it denied Union Pacific equal protection of the law since state agen-cles responsible for public highways are not subject to similar contempt proceedings for failure to abate weeds at public highway crossings.

[956]*9561 5 The Corporation Commission, en bane, affirmed the ALJ's report and ordered Union Pacific to remove all trash, weeds, and debris in the railroad rights-of-way. The Commission determined that it had subject matter jurisdiction under the Oklahoma constitution and its own rules. Furthermore, the Commission found that it was not pre-empted from weed regulation by any powers given to municipalities by the legislature. Union Pacific appeals.

STANDARD OF REVIEW

T6 The standards of review in appeals from orders of the Corporation Commission are found in the Oklahoma constitution. It provides for two standards of review, depending on the type of violation asserted by the appealing parties. If a violation of the federal or state constitution is asserted, the appellate court is directed to "exercise its own independent judgment as to both the law and the facts." Oklahoma Constitution, art. 9, § 20. In all other cases, a more deferential standard is applied and the review is limited to determining whether "the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence." Id.

17 The supreme court has previously held that issues of the Corporation Commission's jurisdiction are questions of law, upon which appellate courts must make independent findings. See Southern Pac. Communications Co. v. Corporation Comm'n, 1978 OK 14, § 11, 586 P.2d 327, 330; State v. Oklahoma Ordnance Works Auth., 1980 OK 94, ¶ 4, 613 P.2d 476, 479. Because this appeal considers the subject matter jurisdiction of the Corporation Commission, we must independently determine the issue of jurisdiction.

ANALYSIS

18 In its petition in error, Union Pacific alleges that the subject matter jurisdiction of the Commission has been preempted by federal law,1 but fails to even mention this contention in either of its briefs. "The absence of argument and authorities on a point of error preserved by a petition in error is deemed abandonment of that point." Perry v. Meek, 1980 OK 151, ¶ 13, 618 P.2d 934, 938; see also Rule 1.11(k)(1) of the Supreme Court Rules, 12 0.8. Supp.1999, ch. 15, app. 1 ("Argument without supporting authority will not be considered."). Likewise, Union Pacific's assertion that it was denied both equal protection of the law and due process will not be considered because it failed to provide supporting authority for these claims in its briefs.

1 9 Therefore, although Union Pacific's petition in error contains four allegations of error, this court will only consider the two issues which were addressed in its briefs: the questions of subject matter jurisdiction and preemption by municipal jurisdiction.

110 Union Pacific's primary contention is that the Commission does not have the authority to order the removal of the weeds and debris because such removal is a public health concern, which is outside the Commission's limited jurisdiction. The Commission's powers are set out in article 9, section 18 of the Oklahoma constitution, which provides in part:

The Commission shall have the power and authority and be charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just.

{ 11 Pursuant to this grant of authority, the Commission promulgated a rule requiring that:

[957]*957Railroads or other persons, firms or corporations operating a railroad company are responsible for the reasonable abatement of all rank weeds, noxious plants, thickets and trash, as defined in this Subchapter, along their rights-of-way and at crossings within a sight rectangle within the boundaries of any city or town or unineorporated community in Oklahoma.

Okla. Admin. Code § 165:82-1-11(a) (Supp. 1998) (emphasis added). It is under this rule that the Commission sought to hold Union Pacific responsible for the removal of the weeds and debris.

112 Union Pacific concedes that, if the material was an impediment to the line of sight of the traveling public, the Commission has the authority to issue such an order.

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2001 OK CIV APP 56, 23 P.3d 954, 72 O.B.A.J. 1565, 2000 Okla. Civ. App. LEXIS 143, 2001 WL 531099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/union-pacific-railroad-v-state-ex-rel-corporation-commission-oklacivapp-2000.