EAST ST. LOUIS - Flood damage claims that Caseyville and Keller Farms brought against CSX don’t involve the railroad’s bridge over a creek, village attorney Doug Stewart and Keller Farms counsel Jason Johnson argued on March 5.
Johnson told Chief U.S. District Judge Nancy Rosenstengel, “There is no criticism whatsoever about the bridge itself, the tracks that sit on the bridge, or anything at all to do with any railroad operations in this case.”
“It has nothing to do with the bridge," he said. "The bridge is a perfectly fine bridge.”
Stewart said, “The fact that they are a railroad plays no part in the case whatsoever. There is just coincidentally a railroad line on top of that bridge.”
Stewart, of Fairview Heights, filed the complaint at St. Clair County circuit court last July along with Johnson and Patrick Stufflebeam of Edwardsville for Keller.
They claimed CSX caused flooding in July 2022.
They claimed water surged from an enormous breach into the railroad bed, over Keller's land and into Caseyville, “causing widespread destruction.”
They claimed Caseyville expended massive amounts of money for emergency responders and remediation crews.
CSX counsel Charles Swartwout of Belleville removed the complaint to district court, claiming Caseyville and Keller Farms raised issues under federal law.
He moved to dismiss the complaint, claiming government bodies may not recover remediation expenses by civil action.
He claimed federal regulations on drainage and inspection preempted state law claims.
Stewart and Johnson filed responses and Swartwout moved for a hearing, claiming they defended a complaint that didn’t exist.
He claimed they pleaded damages for abatement or compensation for harm to property and hundreds of thousands for expenses relating to property.
“These harms appear nowhere in the complaint," he wrote.
He claimed the complaint pleaded no city property damage and no personal injury.
He claimed the responses confirmed that Caseyville and Keller Farms proposed a duty owed to the world with no limits or bounds.
Rosenstengel granted a hearing, set it in January and later delayed it to March 5.
On that date Swartwout told her she ordered plaintiffs to file disclosure notices and she said, “That still hasn’t been filed?”
He said no and she gave Caseyville and Keller Farms seven days to file them.
“The Seventh Circuit wouldn’t hesitate to throw out the case if we don’t have jurisdiction cleared up," she said.
Swartwout said plaintiffs needed to amend the complaint or be dismissed.
Rosenstengel asked about applying the law to Caseyville’s costs in repairing its own property, like a municipal building.
“That I don’t know until I see the pleading," Swartwout said. “I don’t know what they are going to plead relative to actual damages.”
Rosenstengel asked Johnson if Keller Farms identified damage other than to crops.
Johnson said no and Stewart said, “If I can help Mr. Johnson, there was the additional damages by Keller in terms of just cleaning up the debris, the sediment and everything that actually flushed out into the field.”
“It’s not purely just the loss of crops that was suffered by Keller Farms," Stewart said.
Johnson said, “The rules don’t require us to itemize and say every piece of damage that we have, right? All that we need to do is plead that we do have damage.”
Swartwout said the bridge fell within the purview of the Surface Transportation Board which determines operations, management, structures and related facilities.
He said Caseyville and Keller Farms argued for actions that would interfere with operations.
Rosenstengel told plaintiffs, “It seems like you are criticizing CSX for their maintenance and design of the bridge and other parts of the property. Isn’t that using the state tort law to force them to modify how they maintain their property?”
Johnson said CSX tried to frame the complaint that way but it’s not what was alleged.
“We are going after CSX as a landowner who just happens to be a railroad company," Johnson said.
“The issue here is a creek that runs on CSX’s property that they are allowing debris to accumulate in the creek.
“It just so happens to be damming up against their bridge.
“When you have a big rain event it serves as an unnatural dam that blocks the water from naturally flowing down the creek and instead it spills over the levee walls and into neighboring properties.”
He said CSX tried to make it seem like they criticized the design of the bridge.
He said that was false and he identified the bridge as only a geographic point of reference.
Swartwout said he was there to make sure CSX can litigate in an effective and efficient manner and the only way to do that was to get on course in the complaint stage.
"We are not creating this water flow," he said. "This is a ditch.”
He said Metro East Sanitary District runs it.
“This isn’t a situation where someone is changing a ditch or adding to their land to create a flow to dominate somebody else’s land by discharging water onto it," he said.
“This was a torrential two day rain, probably a hundred year, maybe a five hundred year event.”
Rosenstengel said she would get an order out as soon as she could.