Faced with the possibility of losing in court over its effort to force one of the country’s largest freight rail operators to pay hundreds of thousands of dollars in sewage fees, the town of Cicero has instead filed suit against BNSF Railway, claiming BNSF’s massive rail yard in Cicero is a public nuisance that causes extensive flooding throughout the community.
On July 13, Cicero sued BNSF in Cook County Circuit Court, accusing the railroad of trespass and public nuisance.
The lawsuit comes as the latest step in a rolling legal tussle over Cicero’s efforts to compel BNSF to pay drastically increased sewage fees the railroad said targeted them, in violation of federal law.
Renato Marriotti
| Twitter
BNSF had sued Cicero in federal court in early June. The lawsuit took aim at an ordinance Cicero’s town government had enacted last December that rewrote the town’s sewer rate schedule - but only for railroads.
The new ordinance would require railroads “to pay an exorbitant $350 per acre charge for monthly sewer use,” BNSF wrote in its complaint. Previously, BNSF, which operates a huge railyard in Cicero, had been billed $27.42 per acre for sewer services by the town.
Cicero ordinances require BNSF to connect its railyard to the town’s sewage system. And because the rate is assessed by the acre, and not by actual sewage discharge, BNSF said the town has given it no way to reduce that charge. Neither can the railroad simply relocate its railyard.
According to the complaint, Cicero had threatened to force BNSF to cease operations at its railyard unless it paid a sewer bill of more than $395,000.
In response, BNSF filed suit in federal court, asking a judge to declare Cicero had illegally discriminated against the railroad, in violation of federal laws that forbid actions by local governments to interfere with railroad transportation.
They also asserted the new sewer rate structure constituted an illegal local tax on railroads, because the fees were only increased on railroads, and no other commercial businesses operating in Cicero.
Cicero initially attempted to persuade a federal judge that the rate increases should be allowed to stand because they were needed to help the town offset alleged flooding in Cicero, allegedly caused by paving and backfill activities in BNSF’s railyard.
Cicero also sought a court order requiring BNSF to turn over company records and other information concerning improvements BNSF has conducted at its Cicero railyard through the years.
BNSF noted in reply briefs that Cicero’s assertions failed to address the core legal question:
Whether Cicero had violated federal law in jacking up BNSF’s sewage bills by 1,250%.
On July 7, U.S. District Judge Steven Seeger refused Cicero’s request, saying Cicero’s discovery requests “do not pass muster.”
“Cicero should know why Cicero raised its rates,” Seeger wrote in his order. “Internal documents possessed by BNSF don't seem particularly relevant at this early stage because they did not play a role in Cicero's decision−making. And if flooding is the reason why Cicero raised rates, then Cicero should have the documents that support Cicero's decision.
“The requests give the impression that Cicero made a decision, and is now looking for reasons to back it up after the fact.”
Rather than continue to press its claim to BNSF’s allegedly overdue sewage bill, the town of Cicero opted to scuttle its case in federal court, and instead press a new case in Cook County court.
On July 13, the town asked Judge Seeger to dismiss BNSF’s lawsuit, notifying the federal judge of its new lawsuit against BNSF, and asserting it was abandoning its threats to shut down BNSF’s railyard over the unpaid bills.
The town said BNSF’s request for a court order prohibiting the enforcement and collection of those sewer bills is now “moot.”
BNSF has yet to reply to that motion, and Judge Seeger did not yet rule on that motion to dismiss, as of the evening of Tuesday, July 13.
In their new complaint, Cicero is asking a Cook County judge to order BNSF to construct new stormwater detention areas on its property, to prevent the flooding Cicero said is caused by the railyard. Cicero said the flooding has placed a strain on Cicero’s aged sewer system, which handles both sanitary sewage and stormwater runoff in the same system, while also allegedly causing flooding on private property elsewhere in Cicero.
The town asserted in its complaint that BNSF has paved over much of its railyard, while not providing for sufficient stormwater detention.
“The failure to appropriately provide for stormwater management does not comply with common law duties of property ownership and maintenance and leads to flooding and standing water of water to the Town and surrounding area, which is coming from a heavily industrial site that likely contains contaminants or other pollutants and damages the public health, safety and welfare of the Town and its residents,” Cicero wrote in its new complaint.
“These actions by BNSF will result in and continue to result in further encroachment and increasing amounts of overflow which will overwhelm Town utilities and interfere with the quiet enjoyment of properties around the (BNSF rail yard),” Cicero wrote.
Cicero is represented in the actions by attorneys Cynthia S. Grandfield, Timothy A.M. Woerner and Michael A. Albert, of the Del Galdo Law Group, of Berwyn.
BNSF has been represented by attorneys Renato Marriotti, Holly H. Campbell and Sara L. Chamberlain, of the firm of Thompson Coburn LLP, of Chicago and St. Louis, as well as attorneys with the firm of Munger Tolles & Olson, of San Francisco.