A Chicago federal judge has slapped a hold on an attempt by Cicero officials to force BNSF, one of the country’s largest railroads, to pay the town tens of thousands of dollars each month in sewer fees for its massive rail yard, as the judge said a recently approved town ordinance may be an illegal action directly targeted at BNSF alone.
On Nov. 12, U.S. District Judge Steven Seeger granted BNSF’s request for a temporary restraining order against the town of Cicero.
The order forbids Cicero town officials from taking any action to enforce its new sewer rate against BNSF’s Cicero railyard, as the judge said he believes the town’s targeted sewer rate increase runs afoul of federal law, which specially protects railroads from attempts by local officials to work them over for special fees or taxes.
Those prohibitions hold true no matter if the town attempts to frame the rate increase as a “fee” or a “tax,” Judge Seeger said.
The order, the judge said, “is necessary to prevent the Defendant Town of Cicero from carrying out its threat to disconnect BNSF’s sewer service at its Cicero property, which would harm BNSF’s customers and employees, as well as harm interstate commerce.”
“Shutting down a major interstate railyard would harm countless buyers, sellers, shippers, distributors, and consumers,” Seeger wrote.
The new ordinance would have required railroads “to pay an exorbitant $350 per acre charge for monthly use,” BNSF argued 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 use, BNSF said the town has given it no way to reduce its monthly bills.
The railroad noted it also cannot simply relocate its rail yard to escape the alleged cash grab.
According to the complaint, Cicero had threatened to force BNSF to close the rail yard unless it paid a sewer bill of more than $350,000.
In response, BNSF filed suit, asserting the new sewer rates amounted to illegal discrimination against railroads, in violation of federal laws that forbid local governments from interfering with railroad transportation, or placing special local taxes on them.
Cicero initially attempted to persuade the judge the rate increases should be allowed to stand because they were needed to help the town offset flooding allegedly caused by stormwater runoff from BNSF’s property.
When that line of argument met little success, Cicero agreed to place a hold on any enforcement actions to allow the court time to address the railroad’s claims and the town’s counterarguments. Cicero also attempted to sue BNSF in Cook County Circuit Court over the alleged flooding issues.
However, BNSF rolled that action into federal court, and hooked it up to the initial case, as well.
As the clock wound down on Cicero’s enforcement pause, the judge asked the town if it would voluntarily extend the pause, as the court continued to hear arguments over dueling motions for judgment from the railroad and the town, each one asking the judge to end the case swiftly, in their favor.
On Nov. 5, Cicero refused the judge’s invitation to extend the pause, continuing to argue that it believed its ordinance was legal and would withstand BNSF’s court challenge.
A week later, Judge Seeger imposed the temporary restraining order, saying he believed it likely that BNSF will prevail on its claims against Cicero.
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.