(The News Journal posted the following article by Marty Allen on its website on December 16.)
WILMINGTON, Del. — Delaware can require a national railroad company to repair four deteriorating bridges that cross over its tracks, under a federal judge’s ruling.
U.S. District Judge Kent A. Jordan threw out a lawsuit filed in July by CSX Transportation against the Delaware Department of Transportation and the city of Wilmington, but he ruled in a way that would allow CSX to revive the case with a new argument.
Jordan rejected the railroad’s contention that Delaware’s possible participation in a federal aid program for highway-railway crossings would prohibit the state from imposing repair requirements on the railroad.
He ruled that Delaware would forfeit its authority to require repairs only in cases where the state has sought and accepted federal money for specific repairs. Delaware retains authority to impose repair requirements in projects where it has not sought and accepted money, he ruled.
Delaware has not accepted federal money for the reconstruction and repair costs of the four bridges, said attorney Mark F. Dunkle, who represents DelDOT.
Although CSX contends federal money should be used for those repairs, Dunkle said, state Transportation Secretary Nathan Hayward wants to use federal money to repair bridges that have no owner to assume responsibility for them.
The state alleges CSX owns all four bridges. CSX does not claim that it owns the bridges, although it has not rejected ownership of them either, according to the opinion issued recently.
Three of the bridges, crossing Newport Road, Sixth Street and Seventh Street, were closed to vehicle and pedestrian traffic for safety reasons last year. The fourth, crossing Ninth Street, has a 3-ton limit. One bridge is near Newport, and three are in Wilmington. DelDOT estimates repair costs for the four bridges at $4.5 million.
CSX spokesman Bob Sullivan said the company was disappointed by Jordan’s decision. “We are reviewing it carefully and respectfully and will make a decision on how to proceed shortly,” he said.
CSX asked for the court to declare it is under no obligation to do the bridge work, and there may be a theory not yet raised that would entitle it to such an order, Jordan wrote in a footnote to his ruling. He said his opinion is not intended to bar that kind of relief.
A spokesman for Wilmington Mayor James M. Baker said Baker was pleased by the ruling.
“The city holds to its position that CSX has a responsibility to citizens to maintain its property within the city of Wilmington in a safe and proper condition. CSX is no different than any other property owner who is required to abide by certain laws, rules or regulations,” Baker said in a prepared statement.