(The following article by James Quirk Jr. was posted on the Iowa Hawkeye website on May 14.)
BURLINGTON, Iowa — The Burlington Northern Santa Fe Railway filed its response this week in U.S. District Court to a lawsuit filed by city officials on March 4.
City Attorney Scott Power said the BNSF answer is an attempt to move the matter from the federal district court in Davenport to the Surface Transportation Board in Washington.
The city’s suit contends BNSF breached a 146–year–old contract that stipulates the railroad could use riverfront property for its operations as long as it maintained its principal shops in the city.
The railroad company eliminated 258 local maintenance shops jobs in January 2003 and recently transferred another 93 positions to Galesburg, Ill., and Topeka, Kan., leaving 44 jobs behind.
The city initially filed the suit in Des Moines County District Court, but the matter was moved to U.S. District Court after BNSF filed a notice of removal, an action that wasn’t answered by the city.
Power said he has no problem fighting BNSF in federal court and that’s why the city didn’t respond to the notice of removal. However, he doesn’t want the matter moved to the Surface Transportation Board, an entity he called “a friendly forum for a railroad” in March.
Power, who hadn’t yet read the response when interviewed Thursday afternoon, said somebody from his law firm did read it and told him that moving it to the Surface Transportation Board “is in there as an affirmative defense.”
“It’s basically stating that (the U.S. District Court) doesn’t have jurisdiction,” he said. “I guess that’s tantamount to asking that the matter be moved out (to Washington, D.C.). In reality, they’re going to ask the court to dismiss the action here and move it out to Washington.”
Power said there will be no trial until a decision is made regarding where the case will be argued.
“I don’t think that the Surface Transportation Board has jurisdiction over this thing,” he said. “I think the federal district court does. It’s going to be up to a federal judge in Davenport … to make that decision.”
Although BNSF admits early in its answer that “venue is proper in the United States District Court,” it states under a caption called “affirmative defenses” that the city’s claims are pre–empted by federal law, “which provides, among other things, that the Surface Transportation Board has ‘exclusive’ jurisdiction over ‘transportation’ by rail carriers, which is defined to include any ‘property, facility, instrumentality, or equipment of any kind related to the movement of passengers and property, or both, by rail, regardless of ownership or an agreement concerning use.’ ”
The BNSF answer also states the city action is pre–empted by another federal law “which gives the Surface Transportation Board exclusive jurisdiction over any involuntary terms of rail service.”
As for the breach of contract claims made by the city, BNSF denies the allegations in its answer and “affirmatively states that the West Burlington shops had not been the principal machine shops of the railroad for many years prior to 2003.”
The answer also requests the court dismiss the case at the city’s cost.
Power said he’s “certain” the city will file a response to the BNSF answer, but made it clear that “I’ve never been through something like this before.”
As for the Surface Transportation Board, “I know that’s an administrative agency and the fact that they (BNSF) apparently want to go there might indicate that (the board is partial to railroads),” he said.
Power said he doesn’t know how much time the city has to file a response.
“This is a very rare procedure,” he said.
Should the matter end up before the Surface Transportation Board, the city would continue its legal battle against the railroad, Power said.
All BNSF spokesman Steve Forsberg would say about the matter is “we continue to believe their case is baseless.”
BNSF attorney Michael Thrall of Des Moines declined to comment.