Union Pacific Railroad Company, a Delaware corporation v. Chicago Transit Authority, a municipal corporation

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2147
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation,
Plaintiff-Appellee,
v.
CHICAGO TRANSIT AUTHORITY,
a municipal corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CV 229—Robert M. Dow, Jr., Judge.
ARGUED JANUARY 21, 2011—DECIDED JULY 25, 2011
Before FLAUM, MANION, and EVANS, Circuit Judges.
MANION, Circuit Judge. Union Pacific Railroad Company
owns a 2.8-mile-long right-of-way that it has leased to
the Chicago Transit Authority (CTA) for almost 50 years.
When it became too costly for the CTA to continue
leasing the land, the CTA sought to condemn the land

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2 No. 09-2147
and obtain a perpetual easement over it. Union Pacific
filed for injunctive relief in federal district court,
arguing that the state condemnation was preempted by
the Interstate Commerce Commission Termination Act
(“ICCTA” or “Act”), 49 U.S.C. § 10501(b). The district
court agreed and granted the injunction. The CTA now
appeals. Because we agree that the state condemnation
is preempted by federal law, we affirm.
I.
Union Pacific operates railroad track throughout the
United States and conducts a significant amount of
freight shipping through Chicago. At the center of this
litigation is a piece of railroad property owned by
Union Pacific, which we refer to as the “Right of Way.”
The Right of Way consists of an elevated structure on
a man-made enbankment, running east to west for ap-
proximately 2.8 miles from Laramie Avenue in Chicago
to Harlem Avenue in Oak Park, Illinois. This property
is roughly 90 to 95 feet wide along most of its length.
It covers an area greater than 32 acres (approximately
1,407,812 square feet), and includes 23 bridges over local
streets. On the Right of Way, Union Pacific operates
three railroad tracks.
Union Pacific also leases approximately 40% of the
Right of Way (just under 13 acres) to the CTA, which is a
municipal corporation providing mass transportation
services for the city of Chicago. In the leased property,
the CTA owns and operates two electric-powered local
rapid transit tracks that run parallel to Union Pacific’s

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No. 09-2147 3
three tracks. This arrangement between the CTA and
Union Pacific has continued without interruption since
1962 and is governed by a written lease agreement.
Under the terms of the lease, the CTA must use the
Right of Way only for passenger transportation, it must
maintain its tracks in good condition, and it must get
Union Pacific’s approval before constructing new CTA
facilities such as tracks, platforms, stations, and stairways.
Union Pacific, however, maintains the Right of the Way
and the joint facilities shared with the CTA, such as
retaining walls, drainage facilities, and bridges. The
distance between the CTA’s and Union Pacific’s closest
tracks is approximately five feet for the entire length
of the Right of Way. Because of this close proximity,
Union Pacific must modify its regular maintenance pro-
cedures and use non-standard inspection procedures
when maintaining the Right of Way. The lease also
requires the CTA to reimburse Union Pacific for 40% of
the cost of maintaining the Right of Way and the joint
facilities, including constructing new joint facilities.
Finally, the lease terminates if the CTA stops pas-
senger transportation—other than temporary shut-
downs for maintenance and repair—or if the CTA fails
to make rental payments or to fulfill any of the lease’s
other conditions. As long as the CTA keeps its commit-
ments, the lease does not expire but continues indefinitely.
In exchange for the use of the Right of Way, the CTA
pays monthly rent to Union Pacific. Every ten years, the
parties determine the monthly rent for the next ten-year
period based on a formula specified in the lease and the

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4 No. 09-2147
appraised fair market value of the Right of Way. For the
1992-2002 lease period, the CTA’s monthly rent was
approximately $25,000.
This dispute began when the parties were calculating
the rent for the 2002-2012 lease period. They obtained
conflicting appraisals of the Right of Way’s fair market
value: Union Pacific’s appraisal was $30.8 million, while
that of the CTA was $11.3 million. So, as provided by
the lease, the parties arranged for a neutral appraiser
who valued the property at $25.9 million—setting the
monthly rent at approximately $90,000.
During this time, the parties discussed the possibility
of negotiating a one-time payment in exchange for a
permanent easement over the Right of Way instead of
maintaining the current rental arrangement. Nothing
came of this discussion. Then, in July 2006, the CTA
made Union Pacific an offer: Union Pacific had 14 days
to either accept $7,564,400 for a “perpetual easement”
on the Right of Way or the CTA would condemn the
property. Union Pacific declined the offer. True to its
word, the CTA began condemnation proceedings with
the Illinois Commerce Commission, an administrative
agency of the State of Illinois. In the proceedings, the
CTA requested a perpetual easement that would be
“coextensive” with the lease. Notably, the CTA’s peti-
tion specified that “the CTA’s obligations, interests and
rights under the easement shall run with the land and
not be subject to termination for any reason.”
To halt the condemnation, Union Pacific sought an
injunction in federal district court, arguing that the con-

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No. 09-2147 5
demnation was preempted by the Interstate Commerce
Commission Termination Act. The district court agreed
and granted summary judgment in Union Pacific’s
favor, holding that the condemnation was both categori-
cally preempted and preempted “as applied.” The CTA
now appeals.
II.
We review de novo the district court’s grant of sum-
mary judgment. O’Rourke v. Palisades Acquisition XVI,
LLC, 635 F.3d 938, 941 (7th Cir. 2011). And we review
de novo the district court’s determination of the preemp-
tive effect of a federal statute. Vill. of DePue v. Exxon
Mobil Corp., 537 F.3d 775, 786 (7th Cir. 2008); Franks Inv.
Co. LLC v. Union Pac. R.R. Co., 593 F.3d 404, 407 (5th Cir.
2010) (determining ICCTA preemption).
A.
The Supremacy Clause of the United States Constitu-
tion provides that the Constitution and laws of the
United States are “the supreme Law of the Land . . . any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Thus,
under the Supremacy Clause, federal law “preempts state
laws that interfere with, or are contrary to, federal law.”
Boomer v. AT&T Corp., 309 F.3d 404, 417 (7th Cir. 2002)
(internal quotation omitted). In determining preemp-
tion, we look to Congress’s intent in enacting the federal

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6 No. 09-2147
statute at issue. English v. Gen. Elec. Co., 496 U.S. 72, 78-79
(1990).
In 1995, Congress enacted the Interstate Commerce
Commission Termination Act and created the Surface
Transportation Board to administer the Act. 49 U.S.C.
§§ 10101, 10102(1). In the Act, Congress expressly
conferred on the Board “exclusive” jurisdiction over
the regulation of railroad transportation:
The jurisdiction of the Board over—
(1) transportation by rail carriers, and the reme-
dies provided in this part with respect to rates,
classifications, rules (including car service, inter-
change, and other operating rules), practices,
routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation,
abandonment, or discontinuance of spur, indus-
trial, team, switching, or side tracks, or facilities,
even if the tracks are located, or intended to be
located, entirely in one State,
is exclusive. Except as otherwise provided in this part,
the remedies provided under this part with respect
to regulation of rail transportation are exclusive
and preempt the remedies provided under Federal
or State law.
49 U.S.C. § 10501(b). Congress also defined “transporta-
tion” to include railroad property, facilities, and
equipment “related to the movement of passengers or
property, or both, by rail, regardless of ownership or an
agreement concerning use.” 49 U.S.C. § 10102(9). Con-

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No. 09-2147 7
See, e.g., Island Park, LLC v. CSX Transp., 559 F.3d 96, 104 (2d 1
Cir. 2009) (describing jurisdiction as “broad”); Franks Inv. Co.
v. Union Pac. R.R. Co., 534 F.3d 443, 449 (5th Cir. 2008)
(“The language of the ICCTA’s preemption provision, as well as
the body of case law on the matter, evinces an intent by Con-
gress to broadly preempt state law as it relates to rail trans-
portation.”); City of Lincoln v. Surface Transp. Bd., 414 F.3d 858,
861 (8th Cir. 2005) (“Courts have recognized that Congress
intended to give the Board extensive authority in this area.”);
City of Auburn v. United States, 154 F.3d 1025, 1030 (9th Cir. 1998)
(noting that case law finds “a broad reading of Congress’
preemption intent, not a narrow one”).
The district court held that condemnation can be a form of 2
regulation, and we agree. The Act does not define the term
“regulation.” But as the district court noted, the dictionary
definition of “regulation” is the “act or process of controlling
by rule or restriction.” Black’s Law Dictionary 1398 (9th ed.
2009). And that is what is occurring here—the CTA wants to
control a piece of land through the condemnation. The Board
agrees with this understanding: “Condemnation can be a
form of regulation, and using state eminent domain law to
(continued...)
gress’s intent in the Act to preempt state and local regula-
tion of railroad transportation has been recognized as
broad and sweeping.1
Here, there is no dispute that Union Pacific and its 2.8-
mile Right of Way fall under the Act. Instead, the ques-
tion at issue is whether the proposed state condemna-
tion establishing a perpetual easement over the Right
of Way is a regulation of railroad transportation pre-
empted by the Act.2

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8 No. 09-2147
(...continued) 2
condemn railroad property or facilities for another use that
would conflict with the rail use is exercising control—the most
extreme type of control—over rail transportation as it is
defined in [49 U.S.C. §] 10102(9).” Norfolk S. Ry. Co.—Petition for
Declaratory Order, STB Finance Docket No. 35196, 2010 WL
691256, at *3 (S.T.B. Feb. 26, 2010) (internal quotation omitted).
Other courts have likewise agreed. See Wisconsin Cent. Ltd. v.
City of Marshfield, 160 F. Supp. 2d 1009, 1013 (W.D. Wis. 2000);
Soo Line R.R. Co. v. City of St. Paul, No. 09-2311, 2010 WL
2540695, at *4 (D. Minn. June 17, 2010).
The Board described two types of categorically preempted 3
actions: (1) “any form of state or local permitting or pre-
clearance that, by its nature, could be used to deny a rail-
road the ability to conduct some part of its operations or
to proceed with activities that the Board has authorized” and
(2) a “state or local regulation of matters directly regulated
by the Board.” CSX Transp., Inc., 2005 WL 1024490, at *2.
Courts have treated preemption under the Act in a
variety of ways. In 2005, the Board surveyed the
different approaches in case law and suggested that
there were two manners in which state or local actions
or regulations could be preempted: (1) categorical, or per
se, preemption, and (2) “as applied” preemption. CSX
Transp., Inc.—Petition for Declaratory Order, STB Finance
Docket No. 34662, 2005 WL 1024490, at *2-3 (S.T.B. May 3,
2005); see also New Orleans & Gulf Coast Ry. Co. v. Barrois,
533 F.3d 321, 332 (5th Cir. 2008) (describing the Board’s
framework). Categorical preemption occurs when a state
or local action is preempted on its face despite its con-
text or rationale. Id at *2. If an action is not categorically3
preempted, it may be preempted “as applied” based on

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No. 09-2147 9
the degree of interference that the particular action has
on railroad transportation—this occurs when the facts
show that the action “would have the effect of preventing
or unreasonably interfering with railroad transportation.”
Id. at *3. In this case, the district court used the Board’s
suggested framework and found that the condemnation
of the Right of Way was both categorically preempted
and preempted “as applied.” Union Pacific urges us to
adopt the same approach.
We believe, however, that for the condemnation case
before us, an “as applied” analysis is more appropriate
than an analysis for categorical preemption. A condemna-
tion is a peculiar type of regulation, one specifically
limited in scope to the ownership or use of one particular
piece of property. When considering a standard regula-
tion—which is normally a rule of general applicabil-
ity—using the Board’s framework for both a categorical
analysis and an “as applied” analysis makes sense: the
regulation may be categorically preempted on its face,
or based on the specific facts of the case it may be pre-
empted “as applied” due to its effect on railroad trans-
portation. By contrast, a condemnation is not a rule
of general applicability because each instance neces-
sarily varies with the facts of the case and the specific
property subject to the condemnation.
Our review of case law analyzing condemnations
also suggests using an “as applied” analysis. In the
context of railroad crossings—a type of taking—one
circuit court has discussed the Board’s suggested frame-
work and held that categorical preemption does not

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10 No. 09-2147
See New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 4
332-33 (5th Cir. 2008).
See Island Park, LLC, 559 F.3d at 104-06; City of Lincoln, 414 F.3d 5
at 860-62; Buffalo S. R.R., Inc. v. Vill. of Croton-On-Hudson, 434
F. Supp. 2d 241, 248-49 (S.D.N.Y. 2006); Dist. of Columbia v.
109,205.5 Square Feet of Land, No. 05-202, 2005 WL 975745, at *3
(D.D.C. Apr. 21, 2005); Maumee & W. R.R. Corp.—Petition for
Declaratory Order, STB Finance Docket No. 34354, 2004 WL
395835, at *2 (S.T.B. Mar. 2, 2004).
apply in that context, and the “as applied” analy-
sis should be used. Also, other courts considering con-4
demnations have not acknowledged the Board’s frame-
work or conducted a categorical preemption analysis,
but have framed the issue by asking whether the action
prevents or unduly interferes with railroad opera-
tions—which corresponds to the “as applied” analysis.5
But perhaps most instructive is a case called Norfolk
Southern Railway Company, issued by the Board in 2010.
Norfolk S. Ry. Co.—Petition for Declaratory Order, STB
Finance Docket No. 35196, 2010 WL 691256 (S.T.B. Feb. 26,
2010). Similar to the case before us, Norfolk involved a
state condemnation of railroad property, but it was de-
cided after the district court issued its opinion. The
Board in Norfolk did not apply a categorical analysis,
nor did it even mention the framework it previously
suggested; instead, it conducted an “as applied” analysis,
asking whether the condemnation of railroad property
“would prevent or unduly interfere” with railroad trans-
portation. Id. at *3. Given this trend in case law and

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No. 09-2147 11
Our decision to use the “as applied” analysis is limited to the 6
case before us, and we make no ruling on how other
cases should be addressed; a categorical analysis may
be applicable in other regulation cases, including other con-
demnation actions.
the fact-specific nature of the condemnation before us,
we will use an “as applied” analysis.6
B.
Using an “as applied” analysis, the question then be-
comes whether the state condemnation for a perpetual
easement over Union Pacific’s Right of Way prevents
or unreasonably interferes with railroad transportation.
As a preliminary matter, we note that this is effectively
a dispute between the parties over the appropriate
amount of rent for the CTA’s use of Union Pacific’s prop-
erty. The CTA is dissatisfied with the monthly rent ar-
rangement that it agreed to when it first entered the
lease. While it has the ability to end the lease and walk
away from the arrangement, the CTA does not want to
stop using the Right of Way. Instead, it wants to change
the terms of the agreement and use Union Pacific’s prop-
erty in exchange for a one-time payment and a lower
overall cost. This creates a unique situation in which
a lessee is bringing condemnation proceedings against
the lessor for property that the lessee already uses ac-
cording to a lease agreement. The parties have not pre-
sented, and we are unaware of, any case law describing
a similar scenario.

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12 No. 09-2147
See also City of S. Bend v. Surface Transp. Bd., 566 F.3d 1166, 7
1169-71 (D.C. Cir. 2009) (affirming the Board’s decision
denying the city’s request to take railroad lines that the
owner was not using and had no present plan to use, but
which might be used in the future); City of Lincoln, 414 F.3d
at 860 (“Condemnation is a permanent action, and it can
never be stated with certainty at what time any particular
part of a right of way may become necessary for railroad
uses.”) (internal quotation omitted).
If the CTA were not already using the Right of Way
under the terms of the lease, this case would be straight-
forward. The CTA’s portion of the Right of Way consists
of a 2.8-mile-long strip of land only five feet adjacent to
heavy railroad traffic and covering an area just under
13 acres. This property is valuable railroad land owned
by Union Pacific that Union Pacific could use for addi-
tional railroad lines if it was unoccupied. In Norfolk, the
Board recognized value in railroad property that the
railroad company was not using nor had any current
plans to use, but which might be needed later for
railroad purposes. Norfolk S. Ry. Co., 2010 WL 691256, at
*4. Even if the property was not being used and Union7
Pacific had no immediate plans to use the property, a
taking of this property would still prevent Union Pacific
from using it for railroad transportation in the future.
Moreover, since the portion of the Right of Way at issue
is only a few feet beside Union Pacific’s current rail-
road tracks, a taking would unreasonably interfere with
Union Pacific’s existing railroad traffic—this is evident
from the fact that Union Pacific currently must use non-

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No. 09-2147 13
See, e.g., City of Lincoln, 414 F.3d 858 (five-block-long strip 8
of land that would interfere with storage and loading); City of
N. Little Rock v. Union Pac. R.R. Co., No. 10-01689, 2011 WL
1519374 (E.D. Ark. Apr. 21, 2011) (30-foot-wide trail that would
interfere with loading and dealing with derailments); Soo
Line R.R. Co., 2010 WL 2540695 (2.1-mile-long strip of land
approximately 33 feet away from railroad line); Norfolk S.
Ry. Co., 2010 WL 691256 (3.4-acre strip of land not used for
railroad traffic, adjacent to but at a lower grade to existing
railroad lines).
standard procedures to inspect and maintain the
Right of Way. Courts have found federal preemption in
cases involving takings of land that are smaller in area,
that are less valuable for railroad transportation, or that
are more distant from and less intrusive to active
railroad operations. In sum, if the CTA were not8
already using the Right of Way, there is no question
that the condemnation would be preempted by federal
law because it would have a significant impact on
railroad transportation by preventing Union Pacific
from using the property for railroad transportation and
by unreasonably interfering with existing transportation
on the neighboring tracks.
But here we come to the crux of the matter: the CTA
already uses the Right of Way as a lessee and can
continue to use the property in perpetuity as long as
it upholds its obligations under the lease. This fact is
important—it is the foundation for the CTA’s entire
legal position. From this premise, the CTA argues that
since the perpetual easement it seeks is “coextensive”

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14 No. 09-2147
with the current terms of the lease, the proposed condem-
nation would not change the status quo of activity on the
Right of Way in any manner. And therefore, since its
relationship with Union Pacific and its use of the
property would not change following the condemnation,
there is no interference with railroad transportation
and, hence, no federal preemption.
The CTA’s position is logically flawed. The fact that
railroad operations on the Right of Way would be the
same both before and after the condemnation is only a
coincidence due to the unique and peculiar scenario in
this case: here, the lessee seeks to condemn property
in order to use it in the same manner it already does
according to a preexisting agreement with the lessor.
But in fact, the condemnation does change the status quo
of the property. Currently, the use of the property is
the result of a lease. Should the CTA prevail, the use
would be the result of a condemnation. And this is sig-
nificant. Federal preemption does not apply to all situa-
tions where the use of property prevents or unrea-
sonably interferes with railroad transportation; it applies
to those situations where a regulation prevents or unrea-
sonably interferes with railroad transportation. If a state
or local government secures the use of property in a
way that affects railroad transportation by contract or
other agreement, there is no issue of federal preemp-
tion; but if it attempts to secure such use by regulation
(in this case, by condemnation), then the possibility of
federal preemption may arise.
The CTA’s use of the Right of Way has a significant
impact on railroad transportation: it prevents Union

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No. 09-2147 15
Most cases where there was no unreasonable interference with 9
railroad transportation are instances of non-conflicting and
non-exclusive easements across railroad property such as road
crossings and utility easements. See, e.g., Lincoln Lumber
(continued...)
Pacific from using the property itself for additional
tracks; and it affects Union Pacific’s current railroad
operations, including requiring Union Pacific to use non-
standard procedures to maintain the Right of Way. Cur-
rently, this presents no federal preemption issue
because Union Pacific has agreed to this significant
impact on railroad transportation through its lease
with the CTA. But with the condemnation, the CTA is
seeking, by regulation and not by agreement, to use
Union Pacific’s property in a way that has a significant
impact on railroad transportation. And a regulation
(instead of an agreement or contract) that prevents or
unreasonably interferes with railroad transportation is
preempted by the Act. Therefore this condemnation
is preempted.
We noted above that this case where a lessee seeks to
condemn property that it already uses under a lease
is unique. We are not aware of, and neither party has
cited, any case law describing a similar situation. Even
so, we believe case law is consistent with our holding. In
all the cases where courts have found that a condemna-
tion was not preempted by the Act, the condemnation
was for a new use of railroad property and such new
use was sufficiently insignificant that it did not unrea-
sonably interfere with railroad transportation. In the9

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16 No. 09-2147
(...continued) 9
Co.—Petition for Declaratory Order, STB Finance Docket No. 34915,
2007 WL 2299735 (S.T.B. Aug. 10, 2007) (sewer easement);
Maumee & W. R.R. Corp., 2004 WL 395835 (road crossing).
The remaining cases are instances of land takings sufficiently
distant from railroad operations to present no unreasonable
interference. See, e.g., Bayou DeChene Reservoir Comm’n v.
Union Pac. R.R. Corp., No. 09-0429, 2009 WL 1604658 (W.D. La.
June 8, 2009); Dist. of Columbia, 2005 WL 975745.
case before us, however, the use of the property is not
insignificant as it prevents Union Pacific from using the
land itself for new railroad tracks and it significantly
affects Union Pacific’s current railroad operations. The
determination of “no unreasonable interference” has
been limited to cases where a new use of property has
an insignificant impact on railroad transportation. The
CTA, however, is asking us to expand the meaning of “no
unreasonable interference” to a case where the use of
property has a significant impact on railroad transporta-
tion but is the same before and after a condemnation.
We decline to do so in this case. Even though there
may be no change in the state of railroad operations on
the Right of Way, the condemnation is preempted by
federal law because it is a regulation, and not a contract
or other agreement, that has the effect of preventing and
unreasonably interfering with railroad transportation.
We note that this reasoning applies even if the
perpetual easement is entirely coextensive with the
lease: before the condemnation, the parties’ relationship
in using the Right of Way is the result of an arms-

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No. 09-2147 17
length agreement between them, while after the con-
demnation, the same shared-property arrangement has
been imposed upon Union Pacific by regulation. This
raises the issue of preemption, even if the relationship
and property rights of the parties are the same both
before and after the condemnation.
But the CTA’s argument fails for a second reason
because despite its claim to the contrary, the perpetual
easement is not coextensive with the lease as the parties’
relationship and property rights do change after the
condemnation. Under its terms, the lease terminates if
the CTA ceases using the Right of Way for passenger
transportation, if it fails to make rental payments, or if
it violates any of the agreements specified in the lease.
In contrast, under the easement, the CTA’s rights
would “not be subject to termination for any reason.”
Thus, with the condemnation, Union Pacific loses certain
property rights, namely, (1) the right to reclaim the prop-
erty if the CTA ceases passenger transportation opera-
tions on the Right of Way or violates any term of the
lease, and (2) the right as a lessor to oust the CTA from
the Right of Way if the CTA fails to meet its lease ob-
ligations.
The CTA contends that these rights are entirely insub-
stantial because the likelihood of Union Pacific regaining
use of the Right of Way is speculative and because
Union Pacific would still have other legal means to
enforce the CTA’s compliance with its obligations. We
disagree. The right to reclaim the property is valuable
despite not knowing whether the CTA will willingly or

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18 No. 09-2147
unwillingly vacating the property in the foreseeable
future. The railroad corridor through Chicago is valuable
for railroad transportation, and although Union Pacific
has no current plans to use the property because of
the CTA’s operations, there is little doubt that it would
be used whenever it became available. In addition, the
fact that Union Pacific would have available legal
remedies to enforce an easement’s obligations does not
make these remedies equivalent to those it has as a land-
lord; a lessor with the ability to oust the lessee if it fails
to uphold its lease obligations is in a stronger position
than a party filing a lawsuit to enforce the terms of an
easement. In short, Union Pacific would lose valuable
property rights in the condemnation, and the CTA would
gain perpetual control of the property without it being
subject to termination—a manner of control that the
CTA currently does not enjoy.
III.
Contrary to the CTA’s claim, the easement is not coex-
tensive with the lease. But even if it were coextensive,
the condemnation is still preempted because it prevents
and unreasonably interferes with railroad transporta-
tion on the Right of Way. The mere fact that the Right
of Way is already used in an identical way pursuant to
a lease agreement is irrelevant; the Act preempts state
or local regulations, not contracts or other agreements,
that have a significant impact on railroad transporta-
tion. The CTA can always ask Union Pacific to enter into
a new lease arrangement for the Right of Way with fin-

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No. 09-2147 19
Union Pacific also challenges the state condemnation on 10
the basis that it violates the Commerce Clause of the United
States Constitution. See U.S. Const. art. I, § 8. Like the district
court, we decline to consider this question because the fed-
eral preemption issue is dispositive.
7-25-11
ancial terms more acceptable to the CTA, but an attempt
to obtain such an arrangement by regulation is pre-
empted by federal law. The judgment of the district
court is AFFIRMED.10

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