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Long v. State6/29/2005
ich may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose." 23 U.S.C. § 130(d). States must specifically evaluate sites and compile records of accidents, cost of and safety benefits of proposed improvements. The states are further required to incorporate the findings resulting from the evaluation into basic source data which will be used in the planning process outlined in the Program. See 23 C.F.R. 924.13(a)-(b). The Program requires the states to rank the sites in need of approval on a priority basis and the state must determine the type of safety device to be installed. 23 C.F.R. § 924.9 and 23 C.F.R. § 924.13. If the state uses federal funding for the proposed safety device, the state must submit an application to the Federal Highway Administration and obtain approval for funds. 23 C.F.R. § 924.11.
Pursuant to these federal directives, the State of Louisiana surveys all roadway/railroad crossings. The DOTD categorizes the crossings as on-system and off-system crossings. An off-system roadway/railroad crossing is defined by the DOTD as a crossing maintained by a local municipality such as a city or parish. An on-system roadway/railroad crossing is one owned and maintained by the state. When Louisiana's participation in the Program began, the DOTD surveyed only "on-system" crossings, i.e. railroad crossings that intersected state highways. After the enactment of the Federal Transportation Assistance Act of 1982, the DOTD also began upgrading "off-system" crossings.
In surveying the off-system crossings, the DOTD evaluates each crossing utilizing the framework set forth in 23 U.S.C. § 130, which includes a host of factors including roadway conditions, accident history, geometry, train speed, type of warning devices in place, and traffic volume. While there are over "3,000 public crossings in Louisiana eligible for evaluation, the DOTD's ability to dedicate federal funds for upgrades has been limited to maybe twenty crossings each year."
When the DOTD is evaluating potential crossings, a substantial amount of communication with the local entities is both required and expected. The DOTD conducts a diagnostic review of the crossing and makes an evaluation. Since the railroad is integral to the process, input from railroads is often secured. Such input includes plans and estimates for the warning devices or changes. For off-system crossings, the DOTD is required to contact the local entity for confirmation that the crossing is a public crossing and that the crossing will be maintained by the local entity. The local entity's acceptance of the maintenance responsibility must be obtained under federal regulations and must be included in the DOTD's submission of its application for funds to the Federal Highway Administration.
History of 23 U.S.C. § 409
Facilitating the Program was an arduous task. The Secretary of the Department informed Congress in 1976 that he was having great difficulty receiving data from the states. The Secretary advised Congress that some "states are very concerned" and "expressed strong objection" to the absence of any confidentiality for their compliance efforts "because of legal actions resulting from accidents at these locations before an improvement can be made." States refused to comply with the information gathering and resisted applying the process "uniformly ... to all public roads," not using "current, reliable accident data ... to help identify hazardous locations" or performing "adequate evaluations." In nineteen states, accident location tracking simply did "not cover all highways."
According to the Secretary, states' "highway departments wer
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