(The following article by James Quirk Jr. was posted on the Burlington Hawkeye website on March 10.)
BURLINGTON, Iowa — Some council members say City Attorney Scott Power never informed them about a 1985 agreement the city made with BNSF Railway before the council agreed a year ago to sue the railroad.
The city filed a lawsuit in March 2004 alleging BNSF breached an 1858 agreement that stipulated the railroad could use riverfront property in Burlington for its operations as long as it maintained its principal shops in the city.
BNSF has eliminated or transferred all of its local shops positions during the past several years.
The railroad, in its answer to the lawsuit, states an agreement it made with the city in 1985, “served as an accord and satisfaction of any prior agreement between the city and defendant.”
In addition to settling ownership questions regarding specific portions of the riverfront property, the 1985 agreement was approved by the council “as the final, formal agreement between the city (and BNSF),” according to the 1985 contract.
“The Burlington Northern is presently using portions of the above–described real estate for railroad purposes and this right to so use the property shall be deemed to be the permanent and exclusive right of Burlington Northern, unimpeded in any way, for so long as the property is used for railroad purposes,” the agreement states. “That at such time as Burlington Northern ceases to use the … property for railroad purposes, title to (it) shall revert to the city.”
The agreement, unlike the 1858 agreement, states nothing about the railroad having to maintain its principal shops in the city.
Mayor Mike Edwards said Wednesday he was unaware of the 1985 agreement until he read about it Saturday in The Hawk Eye.
“It made me raise my eyebrows,” the mayor said. “I guess I’m going to have to hope Scott Power is on the right track. I wish I had seen that earlier.
“But if Power would have said we still had a leg to stand on, I would have probably still been in favor of pursuing it,” he said.
Edwards said he doesn’t know why information on the 1985 agreement wasn’t shared with the council, “but I intend to talk to (Power) about it.
“It doesn’t look good,” Edwards said. “It worried me a little bit after reading that story. Whether it would have changed my mind (about whether to file the lawsuit), I don’t know. I might have explored it a little further if I would have known about it, but at the same token, I just felt like we had to do something … I would have liked to have known about it, though, but it’s a little late for that now.”
Power said he doesn’t remember whether he discussed the 1985 pact with the council.
“We’re not basing our action on (the 1985) agreement,” he said. “We based our action on the agreements back in the 1850s. Why would we, as a plaintiff, allege that 1985 agreement? If anybody’s going to bring it up, it would be brought up the way it was, as an affirmative defense by the defendants.”
Power said he knows the 1985 agreement will affect the case “because I know it raises an affirmative defense for the other side.”
Councilman Mike Campbell, who opposed filing the lawsuit, said he asked Power before and after it was filed whether there were any other agreements the city made with BNSF that could affect the case and Power told him there were none.
Of Campbell’s claim, Power said, “Now, that’s just not true.”
Councilman Chris King said he doesn’t remember whether he saw the 1985 agreement before the lawsuit was filed, but after reviewing it, he said he doesn’t believe it would have changed his mind about pursuing the matter in court.
Campbell, on the other hand, believes the 1985 agreement could cost the city the case.
“I’m not an attorney, but it seems Burlington Northern has a strong case,” he said. “I would think any subsequent agreement would take precedence over an earlier agreement.”
Power said he knew about the agreement and reviewed it with the council that approved it in the 1980s.
“They (the former council) said it didn’t have an effect on the 1858 agreement … so we went forward, end of story,” he said.
As for not discussing the matter with the present council before filing the lawsuit, Power said, “How many days should I take to brief them on everything there is?
“I mean, there’s a tremendous amount of material in this lawsuit,” he said. “There are many, many documents, probably 20 or 30 ordinances. We didn’t go through each and every document between 1853 to the present time before we filed the lawsuit. We went through the ones that were important, the ones that we’re relying on now.”
Councilman Bill Ell said Wednesday he doesn’t remember whether he reviewed the 1985 agreement with Power before the suit was filed, but he did talk about it with him in the past few days.
“I have talked to him about the ’85 contract recently, and I’m still comfortable with our position,” Ell said.
Councilwoman Mary Baker could not be reached for comment Wednesday.
The trial for the lawsuit is set for Nov. 14 in U.S. District Court in Davenport.
To date, the city has spent about $30,000 in legal fees on the BNSF suit.