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Opinion 97060

DATE: December 1, 1997

SUBJECT: Powers of the Nebraska Department of Roads regarding public and private highway-rail grade crossings.

REQUESTED BY: Allan L. Abbott, Director-State Engineer Nebraska Department of Roads

WRITTEN BY: Don Stenberg, Attorney General

John E. Brown, Assistant Attorney General




You have asked several questions regarding the implementation

of L.B. 255 enacted by the 1997 Nebraska Legislature.




You have first asked whether the rules and regulations of the

Public Service Commission pertaining to matters transferred to the

Nebraska Department of Roads by LB 255 are void, or whether the

Nebraska Department of Roads can use those rules until the

Department promulgates rules of its own? Although we find no

authority to determine that the rules themselves are void, the

rules allow the Public Service Commission to implement the powers

granted to the Commission by statute, and because LB 255 removed

the statutory power granted the Public Service Commission, the

Public Service Commission itself is without power to enforce the

rules and regulations transferred to the Department of Roads by LB

255.




There is no doubt that the Legislature can delegate

to an administrative agency the power to make rules and

regulations to implement the policy of a statute. County

of Dodge v. Department of Health, 218 Neb. 346, 355

N.W.2d 775 (1984). However, the agency is limited in its

rulemaking authority to the power delegated to it by the

statute which it is to administer. Id. In order to be

valid, a rule or regulation must be consistent with a

statute under which the rule and regulation is

promulgated. Id.; United States v. Larionoff, 431 U.S.

864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977).




State ex rel. Spire v. Stodola, 228 Neb. 107, 109, 421 N.W.2d 436,

438 (1988).




When the Legislature amended the statutes that the rules and

regulations of the Public Service Commission were meant to

implement, the Legislature revoked the power conferred on the

Public Service Commission to enforce these rules and regulations.




You have asked whether the Department of Roads can use the

rules and regulations of the Public Service Commission until the

Department promulgates rules of its own. We can find no authority

that would allow the Department of Roads to use or enforce the

rules and regulations of the Public Service Commission.




You have asked next whether the Nebraska Department of Roads

has the authority to resolve disputes regarding blocked crossings,

both public and private, as a result of the passage of LB 255?

Although it is unclear from the language of LB 255 whether the

Legislature intended to grant authority to the Department of Roads

to resolve all types of blocked crossing disputes, we believe that

it is clear that LB 255 grants authority to the Department to

resolve disputes in limited situations.




Section 4 of LB 255 grants the Department jurisdiction over

all crossings, both public and private outside of incorporated

villages, towns and cities, but limits the rulemaking authority of

the Department to matters pertaining to construction, maintenance

and repair of crossings. Arguably, a dispute regarding blockage of

a crossing involves the operational aspects of the crossing, not

its construction, maintenance or repair. A blocked crossing that

is properly constructed, maintained or repaired is still blocked.




Section 7 of the bill appears to grant limited authority to

the Department regarding blocked crossings if a person owns land

on both sides of the railroad right-of-way. Section 7 presumably

is meant to apply to private crossings. If the crossing is not

adequate or if the crossing is unsafe, the Department, after

investigation and hearing, can order construction of, among other

things, an overhead or underground crossing. If the remedy ordered

by the Department exceeds $1,500, the landowner is required to pay

one-half of the cost over $1,500. A crossing regularly blocked for

extended periods of time is arguably not adequate, and therefore

the Department is granted authority to investigate, hear and

determine the controversy involving such a crossing.




Section 8 of LB 255 grants the Department authority to

determine complaints filed by a village or city concerning

crossings within villages or cities. The subject matter of the

complaint is not limited, and presumably would include complaints

regarding blocked crossings. The determination of the Department

is limited by section 8 of the bill to making such orders as the

facts may warrant. This again would presumably include an order

preventing the blockage of a given public highway rail crossing.




Section 9 and 10 of LB 255 grant the Department authority to

determine complaints regarding any change, alteration or

construction of a public crossing located outside of incorporated

villages or cities which cannot be agreed upon by the railroad and

the local authority. The proposed change, alteration, or

construction must promote the public convenience or safety, but is

otherwise unlimited as to subject matter. A blocked crossing

dispute involving a public crossing outside of an incorporated

village or city, that could be resolved by change, alteration or

construction of the crossing could be resolved by the Department

pursuant to this section of LB 255. Allocation of expenses of such

change, alteration or construction would be determined by the

Department.




Section 14 of LB 255 authorizes the Department to establish a

comprehensive public safety program to deal with problems

associated with public and private highway-rail grade crossings.

Blockage of highway-rail grade crossings would likely be considered

a problem to be dealt with by such a safety program.




Each of the sections cited grants authority to the Department

to resolve controversies involving blocked highway-rail grade

crossings. Until the Department adopts rules and regulations

establishing a hearing procedure to implement the authority granted

by LB 255, the Department will remain unable to resolve blocked

highway-rail crossing disputes.




You have also asked whether the Nebraska Department of Roads

has the authority to promulgate rules and regulations concerning

resolution of disputes over blocked railroad crossings? We believe

the Department has such authority. Section 14 of LB 255 authorizes

the Department to adopt and promulgate rules and regulations

establishing a comprehensive safety program to deal with problems

associated with public and private highway rail crossings. Obvious

problems associated with highway-rail grade crossings arise when

those crossings are blocked regularly or for extended periods of

time. Despite the definitional problem of determining what is a

private highway-rail crossing, it appears that the Legislature

has granted the Department the authority to promulgate rules and

regulations to carry out the duties transferred to the Department

by LB 255.




Sincerely,

DON STENBERG

Attorney General




John E. Brown

Assistant Attorney General