AGO Opinion 97060
Powers of the Nebraska Department of Roads regarding public and private highway-rail grade crossings.
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
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,
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
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.
John E. Brown
Assistant Attorney General