(The following article by James Quirk Jr. was posted on the Burlington Hawkeye website on May 19.)
BURLINGTON, Iowa — The BNSF Railway has filed a motion with the U.S. District Court in Davenport to have a counterclaim heard along with the lawsuit filed by the city of Burlington against the railroad.
Scott Power, the city’s attorney, said Wednesday there’s a possibility the scheduled Nov. 14 trial date for the case between the city and BNSF could be pushed back should a federal judge allow the railroad’s counterclaim.
The motion to file the counterclaim was filed with the court May 6. Power said he plans to file “a resistance” to the railroad’s counterclaim request either Friday or Monday.
Power opted not to guesstimate on the chances of a judge allowing the counterclaim to be heard.
“If I had a crystal ball, I wouldn’t be here practicing law in Burlington, Iowa,” he said. “I’d be up the ladder somewhere.”
Power said allowing the counterclaim “could delay the start of the trial.
“If they (court) allow a new claim, we’d have to discover what that’s all about,” he said.
In the court document, BNSF states it “seeks a declaratory judgment enforcing the articles of agreement (contained in a 1985 contract between the railroad and city) and a judgment for the damages it (railroad) has sustained as a result of the city’s breach of this agreement.”
The lawsuit filed by the city against BNSF in March 2004 alleged the railroad breached an 1858 agreement that stipulated the railroad could use riverfront property for its operations as long as it maintained its principal shops in the city.
The railroad has eliminated or transferred about 400 local locomotive shops positions during the past several years, effectively shutting down the shops.
The city wants the court to order BNSF to start paying rent for the riverfront site. The amount the city wants has never been specified by Power or a city official.
The railroad, in an amended answer filed late last year to the city suit, stated a 1985 agreement supersedes the 1858 contract.
The 1985 agreement, among other things, stated BNSF could use the riverfront property indefinitely as long as it’s for railroad purposes, but said nothing about BNSF having to maintain its principal shops in the city.
In the counterclaim, the railroad alleges the city is “breaching the articles of agreement (in the 1985 contract).
“The city’s attempt to recover rent for what it contends to be the value of the railroad’s use of the property is in fact impeding the railroad’s right to use the property for railroad purposes and is otherwise breaching (the 1985 agreement)”, the counterclaim states. “The city’s attempt to recover rent from the railroad for its use of the real property is predicated upon an unwritten contract and is therefore barred by the Statute of Frauds.”
The railroad also states it has “been damaged” by the city’s lawsuit and wants the court to order the city to pay for all of BNSF’s legal costs associated with it, plus interest.
BNSF spokesman Steve Forsberg, who could not be reached for comment Wednesday, wouldn’t comment during a past telephone interview on the railroad’s legal fees associated with the lawsuit.
Des Moines attorney Michael Thrall, who is representing BNSF on the matter, could not be reached for comment Wednesday.
To date, the city has spent $66,459 on matters pertaining to the lawsuit.
Power said he doesn’t know whether the railroad’s recent action is an attempt to break the will of the city to continue with the suit.
“Honestly, I don’t know,” he said. “You could call Mr. Thrall and ask him. I just don’t know.”
City Manager Bruce Slagle said BNSF’s counterclaim attempt “is all typical (legal) stuff that goes back and forth.
“It’s all part of the due process,” he said. “It doesn’t even mean it’s going to be granted. We knew going into this that this was the kind of stuff they (BNSF) were going to do.”