Burlington
Charles and Alicia Gordon and their daughter Denielle Gordon are seeking a preliminary injunction to stop the railroad from coming onto their property while making repairs to the washed-out land at 68 Old River Road, across the White River from Hartford Village.
The other plaintiffs are D.J. Enterprises and A.C. Lawn Mowing, which are operated by the Gordons, and the Den & Company hair salon operated by their daughter.
The plaintiffs want the preliminary injunction as a way to stop the railroad from trespassing and depositing massive amounts of rocks on the Gordon property “in an apparent attempt to shore up and support the embankment supporting the tracks,” court papers state. The lawsuit maintains that the trespassing has caused additional damage to the buildings, rendering portions unusable. It says rip rap rock used in the repairs has dislodged and rolled down the embankment.
The landslide, which was produced in part by an estimated 3 inches of rain on July 1, caused the tracks to become suspended in the air above the washed-out embankment, the lawsuit said. The Gordons say the tracks are about 30 feet above their property.
Defense lawyers have offered a general denial of responsibility and negligence.
In its written response the railroad also claims 19 affirmative defenses from the Vermont-based lawsuit, including protection under federal law by maintaining the Interstate Commerce Commission Termination Act and the Federal Railroad Safety Act control the situation. The written response also insists the plaintiffs showed some negligence, but does not say in what manner. The railroad also believes the plaintiffs are not entitled to any punitive or exemplary damages.
Railroad lawyer Michael Flynn of Quincy, Mass. did not respond to multiple phone messages seeking comment.
Burlington law firm Downs Rachlin Martin, on behalf of the plaintiffs, maintains the property has been severely damaged. Attorney Tim Doherty, who is handling the case with R. Bradley Fawley, told the Valley News they are trying to work on a quick resolution so the plaintiffs can move forward.
One issue is whether the federal court in Vermont has jurisdiction in the case. The railroad insists the federal Surface Transportation Board, an independent adjudicatory board, should be considering the case.
Chief Federal Judge Christina Reiss in Burlington heard testimony and arguments during a day-long hearing on Sept. 22. She gave the Gordons and the two companies until Oct. 13 to file supportive memorandums. The railroad will have one week to respond before Reiss is expected to issue a ruling, including findings of fact. The ruling also will include whether she has jurisdiction.
Reiss was shown more than three dozen photographs of the buildings, embankment and the rip rap rock. Lawyers also presented drawings and maps and offered testimony from witnesses, including from a land surveyor about the property line.
The Gordons maintain in the lawsuit they have made repeated requests in the past to the railroad to increase support for the tracks and improve the drainage.
This is not the first problem with the property. The lawsuit noted that during Tropical Storm Irene in August 2011, significant water, mud and silt washed down the embankment and onto the Gordon property, causing damage. The Gordons made a claim against the railroad, which attempted to make repairs intended to prevent future landslides, the lawsuit said.
Three years later during another rain event, more runoff and debris from the railroad right of way supporting the train tracks ended up on the Gordon land, causing more damage, the lawsuit said. It said the Gordons sent a letter in May 2014 asking for corrective action, noting that a culvert appeared to be failing.
The railroad subsequently said it hired a contractor to clean up and stabilize around the culvert, but by September 2014 the lawyer for the Gordons sent a letter noting the problems were still an issue.
The lawsuit alleges that since the July 1 flood, the embankment has “slumped and appears about to further fail and deposit more material on the property.” The Gordons believe the tracks are not adequately supported and pose a risk to the plaintiffs, the railroad, and its passengers and cargo.
The railroad did say in its written answer that it has issued a “slow order” for trains using the tracks above the Gordon property to allow for additional rock compaction.
Mike Donoghue can be reached at vermontnewsfirst@gmail.com.